r 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
DAVIS 


. 


ESSAYS  AND  ADDRESSES 


•N 


Frontispiece. 


ESSAYS  AND  ADDRESSES 

WITH  EXPLANATORY  NOTES 


BY 

ROGER  A.  PRYOR 


NEW  YORK 

THE  NEALE  PUBLISHING  COMPANY 
1912 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
DAVIS 


Copyright,  1912,  by 
THE  NEALE  PUBLISHING  COMPANY 


TO  THE   MEMORY   OF 

HER 

WHOSE  INFLUENCE  IS 
THE  INSPIRATION  OF  THIS  BOOK 


INTRODUCTION 

IN  my  declining  days,  when  "  Whether  for 
thought  or  for  action  my  career  is  at  an  end/'  my 
mind  naturally  reverts  to  the  past,  and  in  the  retro 
spect  quite  as  naturally  lingers  on  events  in  which  I 
myself  bore  a  part,  of  more  or  less  consequence. 
To  these  events  the  following  collection  of  Essays 
and  Addresses  refers;  and  while  intrinsically  they 
are  doubtless  of  little  interest,  they  may  be  not  with 
out  attraction  to  students  who  find  instruction  even 
in  the  ephemeral  effusions  of  the  passing  day. 


CONTENTS 

CHAPTER  PAGE 

I  INDEPENDENCE  OF  THE  SOUTH n 

II  THE   SUFFICIENCY   OF  THE  NEW  AMENDMENTS     .  35 

III  THE  SOLDIER,  THE  FRIEND  OF  PEACE  AND  UNION  .  55 

IV  THE  GENERAL  GRANT  ANNIVERSARY 83 

V  THE  RECIPROCAL  OBLIGATIONS  OF  THE  BENCH  AND 

BAR 89 

VI    THE   BAR  AND   FORENSIC   ORATORY 95 

VII    INFLUENCE  OF  VIRGINIA  IN  THE  FORMATION  OF  THE 

FEDERAL   CONSTITUTION 121 

VIII    THE  PEOPLE  OF  THE  STATE  OF  NEW  YORK  vs.  THE 

NORTH   RIVER   SUGAR  REFINING   COMPANY    .     .151 
INDEX 249 


1  I 

INDEPENDENCE  OF  THE  SOUTH 


ESSAYS  AND  ADDRESSES  BY  ROGER  A. 

PRYOR:  WITH  EXPLANATORY 

NOTES 


INDEPENDENCE  OF  THE  SOUTH 

[Speech  on  the  resolutions  reported  by  the  Committee  of 
Thirty-three.] 

TO-DAY  public  interest  in  the  genesis  of  Seces 
sion  is  attested  by  the  number  of  books  issuing  in 
explanation  of  that  phenomenon.  Of  course,  these 
publications  lack  the  authenticity  and  authority  of 
contemporary  expositions  of  their  policy  by  the 
Secessionists  themselves.  Among  such  expositions 
I  may  be  pardoned  for  saying  that  the  following 
speech  was  recognized  by  my  associates  as  a  correct 
and  comprehensive  statement  of  their  cause : — 

MR.  SPEAKER,,  the  resolutions  before  the  House 
invite  discussion  of  all  the  issues  involved  in  the 
present  unhappy  controversy.  The  rapid  march  of 
events,  outstripping  the  dilatory  movements  of  pro 
crastinating  politicians,  leaves  us  no  question  to  con 
sider  but  the  alternative  of  peace  or  war.  While 
your  committee  of  compromise  have  been  painfully 
elaborating  plans  of  adjustment  —  all  "  mean 
reparations  upon  mighty  ruins," — the  dispute  has 
become  incapable  of  accommodation;  and  the  re 
sults  their  wisdom  was  to  intercept  are  now  accom- 

ii 


12  ESSAYS  AND  ADDRESSES 

plished  and  irrevocable  facts.  Of  the  thirty-three 
States  which  composed  the  confederacy  at  the  be 
ginning  of  this  session,  six  are  no  longer  members 
of  the  Union.  Not  many  days  will  elapse  before 
others  will  follow  their  example.  Sir,  it  is  an  idle 
and  unmeaning  mockery  to  talk  of  preserving  the 
Union;  and  they  who  indulge  in  this  strain  of  dec 
lamation  betray  little  of  the  candor  demanded  by 
the  urgency  of  the  occasion.  In  the  presence  of 
so  tremendous  a  catastrophe  as  that  which  now  op 
presses  us  —  the  overthrow  of  Government,  the  par 
tition  of  a  great  empire,  and  the  imminent  hazard  of 
civil  war  —  we  owe  it  to  ourselves  and  to  the  coun 
try  to  be  done  with  the  expedients  of  a  timid  and 
temporizing  policy,  and  to  address  ourselves  to  the 
emergency  without  reserve  and  without  equivoca 
tion. 

The  issue  before  the  country,  I  repeat,  sir,  is  the 
simple  question  of  peace  or  war.  Acting,  as  they 
conceive,  from  the  impulse  of  abundant  provoca 
tion,  and  exerting  a  power  which  they  derive  from 
the  fundamental  principles  of  this  Government,  the 
States  of  South  Carolina,  Mississippi,  Florida,  Ala 
bama,  Georgia,  and  Louisiana  have  renounced  the 
confederacy  and  assumed  the  attitude  of  independ 
ent  republics.  The  party  into  whose  hands  the 
control  of  the  Administration  is  passing,  so  far 
from  a  recourse  to  conciliatory  measures  and  a 
recognition  of  the  right  of  secession,  obdurately  re 
jects  all  overtures  of  compromise,  and  avows  a  pur 
pose  to  employ  all  the  resources  of  Government  for 


ESSAYS  AND  ADDRESSES  13 

the  subjugation  of  the  retiring  States.  And  so  it 
is  that  the  calamities  of  civil  war  are  about  to  be 
precipitated  upon  the  country. 

Mr.  Speaker,  in  the  suspense  of  this  dreadful  ex 
pectation,  the  people  of  the  South  are  sustained  by 
the  conviction  that,  after  the  passions  and  prej 
udices  of  the  moment  have  passed  away,  impartial 
history  will  acquit  them  of  responsibility  for  the 
consequences  of  the  impending  conflict.  When 
ever,  in  after  times,  men  shall  revert  to  the  events 
of  this  period,  they  will  curse  the  madness  of  those 
by  whom  humanity  was  so  deeply  wounded ;  but  not 
upon  us  will  fall  their  maledictions.  In  what  obli 
gation  of  confederate  duty,  I  demand,  have  we  of 
the  South  been  found  delinquent?  Do  we  not  con 
tribute  more  than  an  equal  proportion  to  the  support 
of  your  Government?  Has  not  Southern  states 
manship  successfully  guided  the  councils  of  the  Re 
public  in  peace?  Has  not  Southern  valor  glo 
riously  illustrated  its  arms  on  the  field  of  battle  ?  To 
what  pledge  of  confederate  faith  have  we  been 
recreant?  Nor  is  it  only  in  a  literal  compliance 
with  the  obligations  of  the  constitutional  compact 
that  the  South  has  exhibited  its  patriotic  fidelity. 
In  our  conception  something  more  was  exacted  by 
the  association  of  fellow-citizenship;  and  we  have 
denied  the  people  of  the  North  no  facility  in  trade, 
and  no  advantage  of  policy,  which  might  promote 
their  prosperity.  With  whose  acquiescence,  and  to 
whose  detriment,  were  measures  of  protection  en 
acted  for  the  aggrandizement  of  your  manufactur- 


14  ESSAYS  AND  ADDRESSES 

ing  interest?  Upon  the  productions  of  whose 
industry  does  your  splendid  commerce  subsist? 
Until  the  demon  of  sectional  discord  was  roused 
by  your  invasion  of  our  rights,  we  willingly 
bore  the  burden  of  unequal  tariffs  and  exclusive 
bounties,  to  assist  the  development  of  your  re 
sources;  and  your  marvelous  opulence  we  contem 
plated  with  the  pride  of  fraternal  sympathy.  In  this 
spirit- of  unselfish  patriotism  Virginia  contributed  a 
princely  domain  to  the  ascendency  of  the  North,  lit 
tle  dreaming  that  the  States  to  be  born  of  her 
bounty  would  repay  her  munificence  with  more  than 
the  ingratitude  of  Lear's  unnatural  offspring. 

Sir,  in  what  manner  have  the  loyalty  and  devo 
tion  of  the  South  been  requited  by  our  confederates 
of  the  North?  I  propound  the  inquiry  in  no  spirit 
of  vindictive  accusation.  Indeed,  sir,  I  would  de 
spise  myself  no  less  than  the  public  would  reproach 
me,  if,  at>  this  august  moment,  I  should  contribute 
anything  to  the  exasperation  of  passions  already  too 
much  inflamed.  I  advert  to  the  wrongs  which  the 
South  has  endured  with  no-  other  view  than  to  vin 
dicate  the  position  she  has  assumed  in  this  contro 
versy.  In  what  manner,  I  repeat,  has  the  North 
repaid  the  fidelity  with  which  the  South  has  re 
deemed  all  the  pledges  of  the  confederate  faith  and 
discharged  all  the  duties  of  common  citizenship? 

At  the  epoch  of  the  Revolution,  and,  indeed,  when 
the  Federal  Government  was  organized,  slavery 
prevailed  in  the  North  as  well  as  in  the  South.  If 
not  the  chief,  it  was  at  least  conspicuous  among  the 


ESSAYS  AND  ADDRESSES  15 

interests  for  the  protection  of  which  our  present 
system  of  Government  was  established.  The  Con 
stitution  distinguishes  it  by  express  and  repeated 
recognition,  in  each  case  fortifying  it  by  particular 
guarantees. 

Now,  sir,  against  this  great  and  vital  interest  — 
an  interest  of  which  the  pecuniary  value  is  indicated 
by  countless  millions,  and  the  importance  of  which, 
in  the  more  essential  aspect  of  social  and  political 
relation,  no  form  of  expression  can  adequately  rep 
resent;  an  interest  on  which  subsists  the  material 
prosperity  of  the  Southern  States,  and  with  which 
their  security  and  independence  are  inseparably 
associated, —  this  interest,  so  vast  and  so  vital,  is 
the  object  of  organized  and  incessant  assault  by 
those  who  are  bound  by  every  obligation  of  written 
covenant  and  confederate  faith  to  protect  it.  They 
have  launched  against  it  the  anathemas  of  moral 
and  legal  outlawry,  and  have  canvassed  Christen 
dom  for  recruits  in  the  crusade  of  Abolitionism. 
They  have  burdened  it  with  iniquitous  and  oppres 
sive  impositions.  They  have  denied  it  the  develop 
ment  without  which  it  cannot  long  endure.  They 
have  attacked  it  in  detail  by  every  variety  of  crim 
inal  expedient.  And,  finally,  they  have  essayed, 
through  the  instrumentality  of  servile  insurrection, 
to  involve  the  South  in  total  and  irreparable  ruin. 

These  wrongs,  I  know,  appeal  in  vain  to  the  men 
by  whom  they  are  inflicted;  but  I  can  imagine  a 
case  analogous  in  all  essential  particulars,  in  the  con 
templation  of  which  they  will  not  be  likely  to  ex- 


i6  ESSAYS  AND  ADDRESSES 

hibit  so  much  of  insensibility.  The  manufacturing 
interest,  if  not  the  main,  is  among  the  most  impor 
tant  of  the  industrial  pursuits  of  New  England. 
Now,  sir,  suppose  the  other  States  of  the  confed 
eracy  should  combine  for  the  spoliation  of  this  in 
terest,  and  to  that  end  should  hold  it  up  to  universal 
execration;  should  invoke  upon  it  the  vengeance 
of  Heaven,  and  proclaim  it  beyond  the  protection 
of  society;  suppose  they  should  employ  the  agency 
of  Government  for  its  destruction,  should  organize 
conspiracies  to  ravage  it,  and,  to  impart  the  last 
touch. of  enormity  to  the  outrage,  should  inflame  the 
passions  of  your  operatives  to  bloody  and  incendiary 
revolt:  who  believes  the  people  of  New  England 
would  patiently  endure  this  accumulation  of  in 
juries?  If  they  be  capable  of  so  abject  a  submis 
sion,  they  possess  not  the  spirit  of  those  ancestors 
of  theirs  with  whom  the  most  trivial  exaction  of  il 
legal  power  was  an  insufferable  oppression.  Yet 
these  and  greater  grievances  are  endured  by  the  peo 
ple  of  the  slave-holding  States,  but  you  only  mock 
our  complaints  and  tighten  the  grasp  of  oppression. 
Why  marvel,  then,  that  the  day  of  resistance  and 
retribution  is  come  at  last? 

But,  sir,  we  do  not  rest  the  vindication  of  the 
South  on  the  slavery  issue  alone,  nor  mainly.  Our 
adversaries,  availing  themselves  of  the  prevalent 
prejudice  against  slavery,  have  diligently  repre 
sented  that  the  secession  of  the  South  has  no  other 
object  than  the  perpetuation  of  bondage;  and  the 
effect  of  the  misstatement  is  visible  already  in  the 


ESSAYS  AND  ADDRESSES  17 

unfriendly  criticism  of  the  foreign  press.  It  is 
time  our  cause  were  placed  upon  the  true  grounds 
of  defense;  upon  principles  which,  instead  of  in 
sulating  it  from  the  sympathies  of  the  world,  will 
command  respect  wherever  justice  rules  and  the 
maxims  of  republican  liberty  are  revered.  True 
it  is  that  the  grievances  of  which  the  South  com 
plains  affect  chiefly  the  interests  of  slavery;  but  it  is 
a  narrow  and  unphilosophical  view  of  the  contro 
versy  to  represent  the  South  as  protesting  only 
against  those  grievances.  There,  indeed,  the  weight 
of  the  oppression  is  most  heavily  felt ;  but  its  source 
must  be  sought  elsewhere.  We  commit  an  error 
in  reasoning,  and  what  is  worse,  a  blunder  in  policy, 
when  we  confound  the  practical  effect  with  the  radi 
cal  principle  of  tyranny.  If  we  mean  to  apply  the 
resources  of  true  statesmanship  to  the  disorders  of 
the  country,  we  must  discover  and  correct  the  or 
ganic  derangement  of  the  system;  otherwise  all  cur 
pretentious  prescription  is  but  the  quackery  of  the 
empiric. 

Sir,  for  fifty  years  the  interests  of  the  South  re 
posed  and  prospered  under  the  sacred  safeguards 
of  the  Constitution.  By  that  compact  the  equality 
of  the  States  was  guaranteed,  their  right  of  self- 
government  recognized,  and  each  member  of  the 
confederacy  mutually  pledged  to  the  others  in  a 
spirit  of  fraternal  alliance.  The  States  of  the 
South  acceded  to  the  Union  on  these  conditions ;  on 
the  conditions  that  they  were  to  be  the  peers  of  their 
sovereign  associates,  that  their  rights  were  to  be  in- 


i8  ESSAYS  AND  ADDRESSES 

violable,  and  their  property  secure  under  the  pro 
tection  of  the  common  Government.  This  sacred 
covenant  was  the  bond  of  union  between  the  con 
federate  Republics.  The  Constitution  imposed  re 
ciprocal  obligations  on  the  States,  and  pledged  them 
to  mutual  offices  of  good-will.  In  what  manner 
are  these  pledges  redeemed,  and  these  obligations 
fulfilled,  by  the  Northern  States? 

Foremost  in  the  catalogue  of  Southern  grievance 
is  the  complaint  that  the  fundamental  principle  of 
the  confederacy,  the  quality  of  the  States,  is  sub 
verted  by  a  combination  between  a  majority  of 
States  to  exclude  other  States  from  an  equal  partici 
pation  in  the  common  domain,  and  so  to  deny  them 
equal  advantages  of  expansion  and  development 
under  the  operation  of  the  Federal  Government. 
Nay,  this  Government  itself  is  abused  to  the  con 
summation  of  that  iniquity. 

To  all  candid  men  I  appeal,  if  this  single  fact  of 
the  exclusion  of  the  South  from  any  share  and  en 
joyment  of  the  joint  territory  of  the  States  does  not 
involve  every  circumstance  that  can  rouse  the  in 
dignation  of  freemen  —  a  breach  of  constitutional 
compact ;  a  stigma  of  inferiority ;  a  principle  of  civil 
disability;  and  a  measure  of  practical  oppression. 
In  private  life  individuals  resent  no  grievance 
sooner  than  an  invasion  of  their  rights  of  property. 
Among  nations  an  encroachment  on  their  territorial 
possessions  is  an  affront  which  war  alone  can  re 
dress.  But  the  exclusion  of  the  South  from  the 
common  domain  of  the  confederacy,  besides  these 


ESSAYS  AND  ADDRESSES  19 

circumstances  of  insult  and  aggression,  implies  a 
breach  of  the  most  solemn  stipulation  and  a  reflec 
tion  the  most  offensive  on  the  Southern  character. 
For  you  cannot  deny  the  South  equal  rights  in  the 
Territories  without  subverting  the  principles  of  the 
Constitution;  and  in  justification  of  this  wrong  the 
social  system  of  the  South  is  denounced  as  the  "  sum 
of  all  villainies/'  What  other  or  greater  grievance 
need  the  South  urge  in  vindication  of  its  conduct? 

But  this  is  not  all.  In  respect  of  another  essen 
tial  condition  of  federal  union  —  the  guarantee  of 
State  sovereignty,  the  right  reserved  by  each  State 
to  administer  its  own  affairs  and  to  develop  its  own 
destinies  in  harmony  with  the  general  interests  of 
the  confederacy  —  whatsoever  of  this  right  may 
have  survived  the  systematic  encroachments  of  Fed 
eral  usurpation  has  vanished  before  the  threat  of 
military  coercion.  Already  sovereign  States  are  re 
duced,  in  contemplation,  to  the  condition  of  pro 
vincial  dependencies;  and  that  doom  they  would 
speedily  realize  but  for  the  indomitable  spirit  which 
quails  not  before  all  the  "  pomp  and  circumstance  " 
of  your  martial  preparation. 

Perhaps,  even  these  radical  violations  of  the  Con 
stitution  in  its  spirit  and  essence  you  may  repel  as 
the  vague  refinements  of  a  temper  alert  to  discover 
material  of  sectional  crimination.  Let  us  descend, 
then,  for  a  moment  to  a  single  instance  in  illustra 
tion  of  the  perfidy  by  which  the  South  is  defrauded 
of  its  covenanted  rights.  An  explicit  provision  of 
the  constitutional  compact  exacts  the  restitution  of 


20  ESSAYS  AND  ADDRESSES 

fugitive  slaves ;  yet  that  provision  —  albeit  so  essen 
tial  that,  without  it  the  South  originally  refused  to 
join  the  confederacy  —  is  shamefully  annulled  by 
the  Northern  States;  and  by  the  default  millions 
of  Southern  property  have  been  confiscated.  So 
flagrantly  has  the  South  been  cheated  of  its  con 
stitutional  rights  and  denied  the  advantages  of  the 
Union  —  all  the  burdens  of  which,  however,  it  bears 
in  enormous  disproportion ! 

What  stronger  argument  than  this,  of  violated 
faith  and  broken  engagements,  of  the  invasion  of 
chartered  rights  and  the  usurpation  of  forbidden 
power,  can  be  required  in  vindication,  if  you  please, 
of  revolutionary  measures?  All  writers  except  the 
partisans  of  divine  right  and  passive  obedience  are 
agreed  that  an  infraction  of  the  implied  contract 
between  sovereign  and  subject  absolves  the  latter 
from  his  allegiance.  It  is  this  principle  of  consti 
tutional  liberty  which  distinguishes  the  great  re 
bellion  and  the  revolution  of  1688  as  the  most  glo 
rious  epochs  in  British  history.  Say,  then,  is  there 
less  obligation  in  a  solemnly  ratified  and  written 
compact  than  in  a  tacit  and  disputed  engagement; 
and  are  sovereign  States  denied  a  redress  which  the 
genius  of  free  government  guarantees  to  individ 
uals? 

But  the  defense  of  the  South  rests  upon  still 
stronger  grounds;  and  her  secession  from  the  con 
federacy  is  justified  by  even  higher  principles  than 
the  right  to  vindicate  a  violated  covenant.  Abso 
lute  power  is  the  essence  of  tyranny,  whether  the 


ESSAYS  AND  ADDRESSES  21 

power  be  wielded  by  a  monarch  or  a  multitude. 
The  dominant  section  in  this  confederacy  claims  and 
exercises  absolute  power — 'power  without  limita 
tion  and  without  responsibility;  without  limitation, 
since  all  the  restrictions  of  the  Constitution  are 
broken  down;  and  without  responsibility,  because, 
in  the  nature  of  things,  the  weaker  interest  cannot 
control  the  majority.  Of  all  species  of  tyranny,  the 
South  is  subjected  to  the  most  intolerable.  Under 
the  rule  of  a  despot  we  might  hope  something  of  his 
impartial  indifference  between  the  sections;  but  to 
be  exposed  to  the  unbridled  sway  of  a  majority,  ad 
verse  in  interest,  inimical  in  feeling,  and  ambitious 
of  domination,  is  to  be  reduced  to  a  condition  more 
abject  than  that  of  the  slaves  whose  emancipation 
is  the  pretext  of  all  this  controversy. 

It  is  against  this  sectional  domination,  this  rule 
of  the  majority  without  law  and  without  limit  —  a 
rule  asserted  in  subversion  of  the  Constitution  and 
established  on  the  ruins  of  the  confederacy  —  it  is 
in  resistance  to  this  despotic  and  detestable  rule, 
that  the  people  of  the  South  have  taken  up  arms. 
This,  Sir,  is  the  cause  of  the  South;  and  tell  me  if 
cause  more  just  ever  consecrated  revolution?  It 
is  the  cause  of  self-government  against  the  domina 
tion  of  foreign  power  —  the  very  cause  for  which 
our  fathers  fought  in  1776.  Sooner  than  submit 
to  the  irresponsible  rule  of  alien  interests,  they  tore 
themselves  from  the  embrace  of  the  mother  country 
and  staked  all  in  the  triumph  of  secession.  Wash 
ington  and  Jefferson  were  the  most  illustrious  of 


22  ESSAYS  AND  ADDRESSES 

secessionists;  and  we  of  to-day  are  but  walking  in 
the  light  of  their  glorious  example.  They  held  it 
unworthy  of  freemen  to  bear  the  burden  of  arbi 
trary  imposition;  and  they  were  not  conciliated  by 
the  deceptive  tender  of  partial  representation  in  the 
British  Parliament.  The  South  has  her  Represen 
tatives  in  this  Capital ;  but  their  voice  is  of  no  avail 
against  the  Northern  majority.  She  is  taxed  not 
with  her  own  consent,  but  by  the  votes  of  delegates 
whom  she  cannot  control. 

I  repeat,  it  is  against  the  rule  of  a  sectional  des 
potism  that  the  South  demands  protection;  and  it 
is  to  assert  the  cause  of  civil  liberty  that  she  de 
clares  her  independence.  You  of  the  North  lav 
ished  your  sympathy  on  the  people  of  Hungary  in 
their  revolt  against  Austrian  absolutism;  but  our 
cause  is  identical  in  principle  and  in  purpose.  At 
this  moment,  while  you  bestow  admiration  and  ap 
plause  on  the  revolutionists  of  Italy,  I  would  re 
mind  you  that  the  people  of  the  South  are  moved 
by  the  same  impatience  of  alien  ascendency  and  the 
same  aspiration  for  self-government  which,  after 
ages  of  slumber,  have  at  last  awakened  the  Italians 
to  a  recollection  of  their  long-lost  liberties. 

The  cause  of  the  South  solicits  recognition  and 
regard  by  yet  another  consideration  —  by  a  con 
sideration  which  appeals  to  the  interest  of  every 
section. 

To-day  it  is  slavery  which  suffers  from  the  over 
throw  of  constitutional  guarantees  and  the  irre 
sponsible  reign  of  the  majority.  But,  the  principle 


ESSAYS  AND  ADDRESSES  23 

of  absolute  power  once  ascendant  in  the  Govern 
ment,  no  interest  is  secure;  and  circumstances  will 
determine  against  what  object  it  may  be  directed. 
If,  in  contravention  of  the  compact  of  union,  slavery 
may  be  oppressed  by  Federal  action,  the  navigation 
of  New  England  or  the  iron  interest  of  Pennsyl 
vania  will  be  exposed  to  the  same  ruin  whenever 
they  shall  incur  the  displeasure  or  invite  the  rapacity 
of  other  sections.  The  only  safeguard  of  Amer 
ican  liberty  is  in  maintaining  the  integrity  of  the 
Constitution  and  preserving  intact  the  limitations 
of  the  Government.  For  that  the  South  contends; 
and  all  are  alike  concerned  in  the  success  of  her 
cause. 

If,  after  the  endurance  of  so  many  wrongs,  and 
the  menace  of  others  still  more  intolerable,  any 
thing  were  wanting  to  justify  the  South  in  the  pub 
lic  opinion  of  the  world,  it  would  be  supplied  by  her 
solicitude  to  avoid  violence  and  redress  her  griev 
ances  within  the  Union.  We  are  reproached,  I 
know,  with  precipitancy  in  not  awaiting  an  overt 
act  of  hostility  from  the  sectional  Administration. 
Sir,  in  our  judgment  a  proclamation  of  war  is  an 
overt  act;  and  such  proclamation  we  find  in  the 
election,  by  an  exclusively  sectional  vote,  of  a  Presi 
dent  pledged  to  put  our  rights  and  our  property  "  in 
course  of  ultimate  extinction  " —  a  President  who 
admonishes  us  in  advance  of  his  aggressive  designs 
by  the  sententious  but  significant  declaration,  that 
"  they  who  deny  freedom  to  others  do  not  deserve 
it  themselves,  and,  under  a  just  God,  cannot  long 


24  ESSAYS  AND  ADDRESSES 

retain  it."  We  could  not  agree  to  await  inactively 
the  development  of  the  disposition  of  the  President 
elect  ;  for  we  claim  to  hold  our  rights  by  some  higher 
and  more  solid  tenure  than  the  capricious  temper  of 
any  individual.  Indeed,  the  argument  of  our  op 
ponents  involves  a  concession  of  our  case,  inas 
much  as  it  implies  that  the  rights  of  the  South  are 
no  longer  secured  by  constitutional  guarantees,  but 
are  suspended  on  the  accident  of  an  unfriendly  Ad 
ministration. 

A  more  imperative  consideration  still  determined 
the  South  to  act  at  once,  and  to  act  decisively.  If 
negotiation  might  avail,  we  thought  to  strengthen 
negotiation  by  a  demonstration  of  our  spirit.  If 
the  sword  alone  can  reclaim  our  rights,  we  were  re 
solved  not  to  be  unprepared  for  the  issue. 

Mr.  Speaker,  since  the  fatal  6th  of  November  to 
the  present  hour,  the  Representatives  of  the  South 
have  invariably  exhibited  an  accommodating  dis 
position.  The  first  day  of  our  session  was  signal 
ized  by  a  proposition  from  a  colleague  of  my  own 
(Mr.  Boteler),  which  contemplated  a  pacific  adjust 
ment  of  our  difficulties.  A  similar  movement,  like 
wise  originating  with  a  Southern  man,  was  initiated 
in  the  Senate.  Meanwhile  various  schemes  of  set 
tlement  have  been  submitted  in  one  or  the  other 
House  of  Congress,  of  which,  without  much  re 
gard  to  their  intrinsic  efficacy,  we  have  uniformly 
avowed  our  support;  while  on  the  other  side  they 
have  been  as  uniformly  rejected  with  a  contemp 
tuous  disdain  of  compromise.  Thus  while  the  South 


ESSAYS  AND  ADDRESSES  25 

is  willing  to  remain  in  the  Union  with  an  assur 
ance  of  its  rights,  the  North  declares,  by  a  refusal 
of  all  concession,  that  it  will  destroy  the  Union 
rather  than  renounce  its  aggressive  designs.  In 
the  perverted  patriotism  of  the  dominant  party  the 
Constitution  of  Washington  is  substituted  by  the 
platform  of  Lincoln;  and  rather  than  be  reproached 
with  logical  inconsistency,  it  chooses  to  incur  the 
guilt  of  civil  war. 

And  not  in  the  negative  sense  of  rejected  com 
promise  only,  does  this  party  betray  a  purpose  to 
push  the  dispute  to  the  arbitrament  of  the  sword. 
Instead  of  a  proclamation  of  conservative  policy  that 
should  give  assurance  of  peace  to  a  distracted  coun 
try,  their  leader  announces  that  his  Administration 
is  to  be  directed  by  the  counsels  of  the  champion  of 
the  "  irrepressible  conflict."  Instead  of  the  sense  of 
justice  and  the  patriotic  spirit  which,  we  were  told, 
still  animate  the  masses  of  the  Northern  people, 
Northern  legislatures  vote  men  and  munitions  of 
war  to  chastise  the  resistance  roused  by  their  own 
perfidious  violations  of  a  constitutional  covenant. 
And  here,  while  with  the  one  hand  Republican  Rep 
resentatives  spurn  all  overtures  of  peace,  with  the 
other  they  grasp  the  sword.  No  measure  of  concil 
iation  will  they  pass;  their  energies  are  engrossed 
in  contriving  schemes  of  coercion.  Day  after  day 
develops  the  completeness  of  their  system  of  force. 
Now  it  is  a  bill  denying  South  Carolina  the  facili 
ties  of  postal  communication;  anon  a  bill  for  the 
compulsory  collection  of  the  revenue  at  Charleston. 


26  ESSAYS  AND  ADDRESSES 

In  the  South  frowning  fortresses  threaten  the  sub 
jugation  of  sovereign  States;  in  this  District  a 
hireling  soldiery  are  concentrated  to  impose  an  ob 
noxious  ruler  on  an  unwilling  people.  Auspicious 
inauguration  of  a  Republican  President!  Happy 
presage  of  a  liberal  Administration!  If  the  con 
clusion  be  but  consistent  with  this  encouraging  com 
mencement,  no  doubt  the  next  four  years  will  rec 
oncile  the  South  to  the  rule  of  the  dominant  party. 

In  aggravation  of  circumstances  themselves  suffi 
ciently  exasperating,  the  rumor,  too  monstrous  for 
belief,  that  all  these  measures  of  coercion  against 
the  South  are  stimulated  and  directed  by  a  son  whom 
the  South  has  delighted  to  honor,  in  proportion  even 
to  his  own  conceit  of  his  own  merit,  imparts  a  tone 
of  deeper  indignation  to  the  murmurs  of  an  out 
raged  people. 

Thus,  Mr.  Speaker,  by  a  series  of  aggressions  of 
which  I  have  attempted  nothing  more  than  an  im 
perfect  sketch,  the  dominant  party  in  the  North 
have  effected  that  which  the  world  in  arms  could 
not  have  accomplished  —  the  overthrow  of  this 
once  glorious  confederacy.  And  not  content  with 
an  achievement  that  will  burden  their  memory 
through  all  coming  ages,  they  now  purpose  to  con 
summate  their  work  by  afflicting  the  country  with 
the  calamities  of  civil  war. 

Mr.  Speaker,  we  of  the  South  maintain  that 
among  the  fundamental  and  essential  articles  of  the 
republican  faith  is  the  doctrine  that  the  States,  hav 
ing  subscribed  the  constitutional  compact  on  their 


ESSAYS  AND  ADDRESSES  27 

own  independent  volition  and  in  the  exercise  of  an 
inherent  sovereignty,  have  the  right,  perfect  and  in 
violable,  to  renounce  the  Union  whenever,  in  their 
judgment,  the  Constitution  is  annulled  and  the 
Union  abused  to  their  oppression.  Nay,  in  the  very 
act  of  assent  to  the  league  of  confederation,  Vir 
ginia  and  other  States,  by  express  stipulation,  re 
served  to  themselves  the  right  to  resume  their  orig 
inal  sovereignty  whenever,  in  their  opinion,  the  con 
ditions  of  alliance  might  be  violated.  As  we  under 
stand  it,  this  is  an  association  of  co-equal  sovereign 
ties,  held  in  fraternal  embrace  by  the  sweet  in 
fluences  of  reciprocal  confidence  and  regard;  not  a 
system  of  reluctant  and  oppressive  connection  bound 
together  by  the  fetters  of  Federal  force!  Nor  have 
the  people  of  the  South  contemplated  the  right  of 
secession  as  a  vain  speculative  proposition,  but  have 
cherished  it  as  an  actual  and  inestimable  muniment 
of  republican  liberty.  It  is  precisely  in  this  par 
ticular  that  the  citizens  of  the  United  States  have 
the  advantage  of  the  people  of  all  other  countries ; 
in  that,  when  the  checks  and  balances  of  the  central 
government  are  overthrown,  there  remains  the  ram 
part  of  State  sovereignty  behind  which  they  may 
rally  and  maintain  their  rights ;  and  in  the  still  more 
important  particular  that,  through  the  instrumen 
tality  of  secession,  they  may  recover  their  liberties 
by  the  organic  operation  of  the  system  without  re 
course  to  the  dreadful  extremity  of  revolution. 

These  principles,  it  appears  by  too  many  distress 
ing  indications,  are  not  prevalent  in  the  councils  of 


28  ESSAYS  AND  ADDRESSES 

the  dominant  party.  Their  cry  is  for  coercion. 
They  present  the  South  no  other  alternative  than 
submission  or  subjugation.  Sir,  it  is  no  easy  effort 
to  debate  an  issue  of  this  sort ;  and  the  impulse  of  a 
gallant  people  is  to  answer  menace  by  defiance.  But 
we  owe  it  to  the  solemnity  of  the  occasion  to  repress 
every  ebullition  of  resentment,  and  to  discuss  even 
an  offensive  topic  in  a  spirit  of  moderation. 

What,  then,  I  would  entreat  of  gentlemen  on  the 
other  side,  do  they  purpose  by  kindling  the  flames 
of  civil  war?  No  matter  what  may  be  the  issue, 
liberty  cannot  survive  the  conflict.  The  frail 
fabric  of  a  system  constructed  for  the  abode  of 
peace  would  perish  under  the  shocks  and  concus 
sions  of  intestine  strife.  An  armed  encounter  be 
tween  the  States  would  be  fatal  to  a  Constitution  de 
signed  to  hold  them  in  amicable  association;  and 
your  Union  would  go  down  with  the  principle  of 
mutual  consent  on  which  it  reposes.  He  must  be 
inattentive  to  the  plainest  lessons  of  history  who 
does  not  foresee  that  from  a  bloody  struggle  among 
the  States — >bellum  plus-quam  civile  —  either  an 
archy  would  emerge  to  brood  over  the  land  with 
desolating  presence,  or  else  military  violence  would 
assert  its  iron  sway.  What  though  the  fortune  of 
war  be  propitious  to  your  arms  ?  You  must  be  con 
tent  with  nothing  less  than  the  annihilation  of  the 
South ;  for,  while  she  breathes,  the  impulse  of  honor 
will  throb  in  her  bosom  and  urge  her  to  still  further 
resistance.  Recollect  the  story  of  Ireland's  wrongs 
and  Ireland's  emancipation.  The  remorseless  con- 


ESSAYS  AND  ADDRESSES  29 

queror  doomed  her  to  desolation;  but  fate  reserved 
her  as  a  dependent  province  of  the  British  Empire. 
How,  as  a  thorn  in  England's  side,  she  avenged  her 
self  on  the  tyrant,  and  at  last  extorted  from  his 
fears  the  recognition  of  her  rights,  your  intelligence 
needs  not  to  be  instructed.  And  so  would  your 
difficulty  be  our  opportunity. 

Imagine,  then,  for  a  moment  the  complete  subju 
gation  of  the  South ;  after  every  spark  of  vitality  is 
extinguished,  and  her  inanimate  form  lies  prostrate 
before  you,  tell  me,  what  recompense  do  you  gain 
for  all  your  sacrifices,  or  what  consolation  in  the 
tormenting  memory  of  your  fratricidal  deed  ? 

But  I  dismiss  the  humiliating  thought.  No  mat 
ter  what  her  inferiority  of  force,  you  cannot  subju 
gate  the  South.  Smitten  she  may  be,  but  not  sub 
dued;  defeated,  but  never  dismayed.  Already,  by 
her  determined  and  defiant  attitude,  she  gives  you 
earnest  of  the  spirit  that  will  animate  her  sons  in 
the  hour  of  trial.  From  many  memorable  examples 
of  heroic  resistance  to  wrong  they  derive  the  con 
solatory  assurance  that  a  brave  people  battling  for 
the  right  are  invincible  against  any  odds.  Nine 
million  of  freemen  —  and  heed  not,  I  admonish  you, 
the  treacherous  suggestion  that  the  South  will  not 
oppose  a  united  front  to  the  foe  —  nine  million  of 
freemen,  of  a  race  the  most  energetic  and  indomi 
table  recorded  in  history,  glorying  in  traditions  of 
ancestral  prowess,  and  attached  to  the  cause  of  lib 
erty  with  a  chivalric  devotion  —  this  people,  them 
selves  distinguished  for  valor  and  the  genius  of 


30  ESSAYS  AND  ADDRESSES 

war,  contending  on  their  own  soil  for  whatever  im 
parts  a  felicity  to  life — 'this  people  will  laugh  to 
scorn  all  the  imposing  array  of  your  military  prep 
aration. 

Not  for  themselves,  then,  do  they  deprecate  a 
conflict  of  arms ;  but  from  respect  to  the  memory  of 
our  common  ancestry;  for  the  sake  of  a  land  to  be 
rent  by  the  cruel  lacerations  of  the  sword ;  and  in 
reverence  of  virtues  a  benign  religion  instructs  them 
to  adore.  By  the  persuasion  of  these  pious  and 
pathetic  importunities  we  would  soothe  in  every 
breast  the  spirit  of  strife  and  invoke  the  pacific  in 
tervention  of  reason  for  the  adjustment  of  our  dis 
putes. 

And  what,  I  pray  you,  is  the  dictate  of  reason? 
Not,  surely,  that  a  free  people  should  be  held  in  sub 
jection  to  a  government  they  detest;  not  that  the 
sword  be  employed  to  coerce  sovereign  States,  and 
constrain  them  to  wear  the  yoke  of  an  odious  and 
oppressive  association ;  but  rather  that  distinct  com 
munities  be  permitted  to  follow  the  bent  of  their 
peculiar  nationality,  and  to  realize  the  destiny  indi 
cated  by  their  own  interests  and  their  own  aspira 
tions.  You  of  the  North  hold  in  your  grasp  the 
elements  of  a  great  empire  —  a  teeming  population, 
immense  resources,  and  a  daring  energy  of  genius 
which  surmounts  all  obstacles,  and  dazzles  the 
world  with  its  exploits.  For  our  part,  in  slight 
esteem  as  you  affect  to  hold  the  South,  we  are  con 
tent  with  our  portion.  Whensoever  occasion  shall 
require  —  and  occasion  does  now  demand  it  —  we 


ESSAYS  AND  ADDRESSES  31 

are  prepared  to  assert  our  equality  among  the  sov 
ereigns  of  the  earth,  and  to  make  good  the  claim 
against  all  comers. 

Instead,  then,  of  vainly  essaying  to  counteract 
the  designs  of  nature,  let  us  heed  the  voice  of 
reason ;  instead  of  lamenting  the  rupture  of  an  arti 
ficial  tie,  as  involving  the  ruin  of  all  our  hopes,  let 
us  lean  on  the  wisdom  of  Providence,  persuaded 
that  as  He  has  already  distinguished  the  epoch  of 
Revolution  as  the  most  glorious  in  the  annals  of 
America,  He  intends  still  farther  to  advance  the 
cause  of  freedom  and  civilization  by  means  of  an 
other  dissevered  nationality. 


II 


THE  SUFFICIENCY  OF  THE  NEW 
AMENDMENTS 


II 

THE  SUFFICIENCY  OF  THE  NEW 
AMENDMENTS 

JUDGE  TOURGEE  in  the  March  [1890]  issue 
of  the  Forum  challenges  the  efficacy  of  the  recent 
Constitutional  Amendments  to  accomplish  the  re 
sults  they  were  designed  to  secure,  namely,  the  in 
tegrity  of  the  Union  and  the  protection  of  the 
colored  population.  That  the  essay  was  not  a  mere 
academic  disputation,  but  was  inspired  by  a  serious 
purpose  and  contemplates  important  objects,  the 
writer,  if  he  does  not  frankly  avow,  yet  plainly 
betrays.  But  whatever  the  motive  of  the  argu 
ment,  its  obvious  tendency  is  to  excite  the  appre 
hensions  of  all  who  are  solicitous  for  the  stability 
of  the  Union,  and  to  agitate  eight  million  colored 
citizens  with  anxiety  for  the  security  of  those  rights 
which  they  had  supposed  to  be  guaranteed  them  by 
the  provisions  of  the  amended  Constitution.  To 
quiet  these  alarms,  and  to  confirm  conviction  of 
the  sufficiency  of  those  enactments  for  the  great 
ends  to  which  they  are  directed,  is  the  purpose  of 
this  contribution. 

Before  proceeding  to  a  consideration  of  Judge 
Tourgee's  specific  criticism  of  the  Amendments,  it 
is  important  to  observe  a  radical  modification  which 
they  have  effected  in  the  relations  of  the  national 
Government  to  the  people  of  the  United  States. 

35 


36  ESSAYS  AND  ADDRESSES 

Prior  to  the  adoption  of  the  Amendments,  the 
essential  rights  and  liberties  of  the  people  had  no 
other  safeguard  than  the  guarantees  of  the  State 
Constitutions.  The  earlier  Amendments  of  the 
Constitution  were  limitations  only  upon  the  action 
of  the  Federal  Government,  and  imposed  no  re 
straint  on  the  States  in  their  relations  to  the  people. 
Excepting  the  prohibition  of  bills  of  attainder,  ex 
post  facto  laws,  and  laws  impairing  the  obligation 
of  contracts,  the  States  were  left  absolutely  free 
to  define  and  regulate  the  people's  rights.  Now, 
it  is  conceivable  that  passion  and  prejudice  and 
•sinister  interest  might  so  prevail  in  a  particular 
State,  or  in  particular  States,  as  to  induce  an  abro 
gation  of  the  securities  of  civil  liberty,  or,  at  all 
events,  such  a  judicial  construction  of  those  securi 
ties  as  would  render  them  nugatory.  But  by  oper 
ation  of  the  new  Amendments  all  the  essential 
rights  and  liberties  of  the  people  are  taken  under 
the  protection  of  the  Federal  government,  and  are 
guaranteed  inviolability  as  against  the  States  and 
any  of  their  agencies. 

i.  "  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States."  1  Judge  Tourgee 
complains  that  here  is  no  definition  or  enumera 
tion  of  the  "  privileges  and  immunities  of  citizens," 
and  that  hence  they  stand  insecurely  upon  mere 
judicial  construction.  But  certainly  it  was  a  politic 
caution  to  abstain  from  such  definition  and  enu- 
1  Constitution,  Article  XIV.,  Sec.  I. 


ESSAYS  AND  ADDRESSES  37 

meration,  lest  perchance  some  precious  right  or  lib 
erty  should  inadvertently  escape  mention  and  fail  of 
protection.  Already  "  judicial  construction "  has 
ascertained  and  declared  that  these  privileges  and 
immunities  are  those  which  "  belong  of  right  to  the 
citizens  of  all  free  governments  " ;  that  they  em 
brace  all  the  fundamental  rights  of  freemen;  that 
they  include  every  right  within  the  comprehensive 
formula  of  the  Declaration  of  Independence — the 
right  to  "  life,  liberty,  and  the  pursuit  of  happi 
ness."  To  ascertain  what  those  fundamental 
rights  of  freemen  are  which  the  clause  in  discussion 
places  under  the  guardianship  of  the  national  Gov 
ernment,  we  need  only  to  recur  to  the  earlier 
Amendments  of  the  Constitution.  As  first  pro 
pounded,  the  Constitution  contained  no  bill  of 
rights,  no  reservation  of  individual  right  from  the 
scope  of  governmental  action;  but,  in  deference  to 
the  demand  of  the  people,  the  defect  was  promptly 
repaired.  Surely,  then,  those  rights  which  the 
earlier  Amendments  of  the  Constitution  were  de 
vised  and  adopted  to  secure  fall  within  the  category 
of  "  fundamental  rights  of  freemen,"  else  they 
would  not  have  been  so  anxiously  consecrated  and 
conserved  by  the  fundamental  law  of  the  nation. 
Reverting  to  the  rights  so  distinguished  and  pro 
tected  from  infringement,  we  find  that  among 
others  are  included  these:  freedom  of  religion,  of 
speech,  and  of  the  press;  security  against  unrea 
sonable  searches  and  seizures;  the  right  of  a  speedy 
and  public  trial  by  an  impartial  jury;  exemption 


38  ESSAYS  AND  ADDRESSES 

from  self-accusing  evidence;  immunity  from  arbi 
trary  invasion  of  person  or  property.  All  these 
rights  now  stand  inviolable  under  the  guaranty  of 
the  Federal  Government. 

2.  "  No  State  shall  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law." 
Quite  unaccountably  Judge  Tourgee  omits  this  pro 
vision  in  his  enumeration  of  the  "  constitutional  ad 
vances  "  made  by  the  new  Amendments.     Surely 
he  does   not   consider  this   safeguard  against  the 
arbitrary  encroachment  of  the  State  upon  the  rights 
of  person  and  property  as  of  too  trivial  signifi 
cance  to  be  noticed,  for  of  all  the  securities  to  the 
people  provided  by  the  new  Amendments  none  is 
of   wider   scope   or   farther- reaching  consequence. 
Previously  to  its  enactment,  nothing  stood  between 
the  State  and  the  lives,  liberties,  and  property  of 
its  citizens  save  its  own  volition  embodied  in  an 
organic  law  which  it  might  change  at  will ;  but  now 
any  invasion  of  the  rights  of  person  or  property, 
except    "  according   to   the   prescribed    forms    and 
solemnities   for  ascertaining  guilt  or   determining 
the  title  to  property,"  is  forbidden  to  the  States; 
and   the  nation,   with   its  almighty  power,   stands 
between  the  victim  and  the  aggressor.     Nor  can  the 
State  evade  the  restriction  by  a  procedure  devised 
for  the  purpose,  for  "  a  statute  passed  for  working 
the  wrong  is  not  due  process  of  law."  2 

3.  "  No  State  shall  deny  to  any  person  the  equal 
protection   of   the   laws."     By   this   provision   the 

z  Bronson,  J.,  in  Porter  v.  Taylor,  4  Hill;  140. 


ESSAYS  AND  ADDRESSES  39 

equality  of  all  persons  before  the  law  is  recognized 
and  enforced  by  the  Federal  authority;  and  the 
State,  in  the  distribution  of  the  benefits  and  the  im 
position  of  the  burdens  of  government,  will  not  be 
suffered  to  discriminate  adversely  to  the  rights  of 
any  man  or  class  in  the  community  —  to  administer 
one  law  to  the  poor  and  another  to  the  rich,  one 
law  to  the  white  man  and  another  to  the  negro. 
The  beneficial  operation  of  this  guaranty  has 
already  been  displayed,  in  protecting  corporations 
from  unequal  exactions,  in  shielding  Chinamen 
from  hostile  discrimination,  and  in  securing  the 
negro  an  impartial  jury  on  his  deliverance  from 
criminal  accusation. 

Thus  it  is  that  now  the  freedom  and  the  security 
of  the  American  people  are  protected  by  a  twofold 
panoply  —  the  safeguard  of  the  State  and  the  safe 
guard  of  the  nation.  If  the  new  Amendments  had 
no  other  or  further  effect,  this  alone  would  chal 
lenge  for  them  the  grateful  homage  of  the  people. 
But  the  crowning  glory  of  the  new  Amendments 
remains  yet  to  be  signalized.  By  Article  XIII 
slavery,  of  whatever  name  and  in  whatever  guise, 
was  effaced  forever  from  the  soil  of  America ;  and 
by  the  first  section  of  Article  XIV,  citizenship  — 
State  as  well  as  national  —  was  made  the  birth 
right  of  the  negro.  Thus  by  these  beneficent  and 
ever-memorable  enactments  five  million  human 
beings  were  set  free  from  bondage  and  invested 
with  the  plenitude  of  citizenship  in  the  imperial  re 
public  of  the  world;  and  by  a  caprice  of  retributive 


40  ESSAYS  AND  ADDRESSES 

justice  the  court  which  had  just  declared  them  in 
capable  of  civic  rights  was  made  the  sanctuary  of 
their  liberties. 

So  far  the  Amendments  seem  entirely  adequate 
to  the  ends  for  which  they  were  designed.  But 
Judge  Tourgee  affirms  them  to  be  defective  still  in 
two  essential  particulars.  First,  he  says : 

"  The  doctrines  of  the  paramount  prerogative  of 
the  State  and  the  paramount  allegiance  of  the  citi 
zen  to  the  State,  are  said  to  have  been  '  settled  by 
war.'  These  doctrines  are  not  even  yet  obnoxious 
to  any  constitutional  inhibition.  Their  correlates, 
secession  and  nullification,  are  not  punishable  of 
fenses,  nor  even  constitutionally-negatived  theories. 
The  doctrine  of  State  sovereignty  rests  to-day  upon 
precisely  the  same  legal  basis  that  it  did  one  hun 
dred  years  ago.  ...  To  some  this  will  seem, 
perhaps,  a  surprising  fact." 

Not  to  "  some,"  but  to  all,  and  not  "  perhaps," 
but  certainly,  it  is  a  surprising  revelation  that  so 
much  blood  and  treasure  have  been  expended  to  no 
purpose;  that  so  many  heroic  lives  have  been  of 
fered  in  a  useless  and,  because  useless,  a  wicked 
sacrifice;  that  the  wisdom  and  virtue  of  statesmen 
have  been  exerted  in  vain  to  consolidate  the  Union 
on  the  stable  basis  of  constitutional  authority;  and 
that,  after  all,  secession  and  nullification  are  still 
vital  and  operative  principles  in  our  political  sys 
tem.  For  one,  at  all  events,  I  reject  this  cynical 


ESSAYS  AND  ADDRESSES  41 

estimate  of  the  results  of  the  mighty  struggle.  For 
one,  I  hold  that  secession  and  nullification,  as 
potential  facts,  were  annihilated  by  the  stroke  of 
war,  and  that  as  principles  they  no  longer  find 
shelter  or  pretense  of  justification  in  the  theory  of 
our  government. 

The  occasion  of  Judge  TourgeVs  pessimistic  out 
cry  is  the  omission  from  the  new  Amendments  of 
any  explicit  negation  of  the  right  of  secession.  But 
here  was  another  wise  and  politic  abstention  on  the 
part  of  the  statesmen  who  reconstructed  the  Union. 
A  direct  and  formal  denial,  in  the  new  Amend 
ments,  of  the  right  of  secession  would  imply  a 
necessity  for  such  denial ;  and  the  necessity  of  such 
denial  would  involve  the  admission  that  otherwise 
the  right  did  exist;  and  this  admission  would  carry 
with  it  the  implication  that,  after  all,  the  Confed 
eracy  had  reason  and  right  on  its  side.  And  if  so, 
then  the  war  on  the  part  of  the  North  was  an  in 
iquitous  crusade  against  a  people  contending  only 
for  their  chartered  rights.  But  the  statesmen 
of  that  day  were  too  sagacious  to  commit  them 
selves  and  the  nation  to  so  self -stultify  ing  a  con 
clusion. 

Nor,  indeed,  was  any  explicit  challenge  of  the 
principle  of  secession  necessary  to  its  exorcism 
from  our  system  of  government.  The  case  was 
this :  the  Confederates  affirmed  the  right  of  a  State 
to  withdraw  at  will  from  the  Union,  and  denied  the 
right  of  the  nation  to  coerce  them  back  into  the 
Union;  the  nation  denied  the  right  of  secession, 


42  ESSAYS  AND  ADDRESSES 

and  asserted  its  right  to  compel  a  State  to  remain 
in  the  Union.  Upon  this  issue  the  battle  was 
fought,  with  the  result  that,  in  point  of  fact,  the 
asserted  right  of  secession  proved  to  be  nothing 
more  than  an  idle  claim  incapable  of  enforcement, 
and  fraught  with  the  most  frightful  calamities  to 
the  party  advancing  it.  That  the  right  of  seces 
sion,  whatever  its  validity  in  abstract  speculation, 
is  no  longer  a  practical  principle  in  American  poli 
tics,  and  will  never  again  be  asserted  as  the  ground 
and  justification  of  separation  from  the  Union,  has 
been  definitely  settled  by  the  most  decisive  of  all 
adjudications  —  the  dread  arbitrament  of  war. 
Power  is  a  surer  guaranty  than  paper. 

And  yet  the  new  Amendments  do  negative  the 
right  of  secession  by  implication,  that  is,  by  abro 
gating  the  fundamental  principle  of  the  former 
federal  system,  and  by  substituting  a  principle  with 
which  paramount  State  allegiance  and,  so,  the  right 
of  secession  are  utterly  incompatible. 

As  the  original  Articles  of  Confederation  con 
stituted  only  a  league  between  the  States,  citizen 
ship  of  the  so-united  States  was  a  thing  inconceiv 
able;  and  accordingly  the  only  citizenship  then 
possible  as  a  legal  fact  was  citizenship  of  the  State. 
National  citizenship  was  introduced  for  the  first 
time  into  the  American  polity  by  the  Constitution 
of  1787.  But  national  citizenship  under  that  Con 
stitution  was  not  primary  and  paramount,  but 
secondary  and  subordinate.  National  citizenship 
was  only  an  incident  of  State  citizenship;  one  was 


ESSAYS  AND  ADDRESSES  43 

a  citizen  of  'the  Union  because,  and  only  because, 
he  was  a  citizen  of  a  State. 

"  Strictly  speaking,  there  were  no  citizens  of  the 
United  States,  but  only  of  some  one  of  them/'  3 
"Under  the  Constitution  [of  1787],  citizenship  of 
the  United  States,  in  reference  to  natives,  was  de 
pendent  upon  citizenship  in  the  several  States, 
under  their  Constitution  and  laws."  4  "  No  man 
was  a  citizen  of  the  United  States,  except  as  he  was 
a  citizen  of  one  of  the  States."  5  "  Every  citizen 
of  a  State  is  ipso  facto  a  citizen  of  the  United 
States."  6 

Since,  then,  citizenship  of  the  State  was  the 
primary  and  paramount  citizenship,  and  citizenship 
of  the  United  States  only  derivative  and  depend 
ent,  the  logic  of  secession  deduced  the  conclusions, 
first,  that  allegiance  to  the  State  was  primary  and 
paramount,  and  allegiance  to  the  United  States 
only  secondary  and  subordinate;  and,  secondly, 
that  on  occasion  of  conflict  between  these  diverse 
allegiances,  allegiance  to  the  State  imposed  the 
greater  and  the  more  imperative  obligation.  Hence 
the  doctrine  of  the  right  of  secession. 

But  by  the  new  Amendments  all  this  is  changed. 
The  principle  is  inverted.  Allegiance  to  the  Union 
is  made  the  primary  and  paramount  allegiance,  im- 

3  Shannon  v.  Hill,  26  Federal  Reporter,  343. 

4  Slaughter-house  Cases,  16  Wallace,  94. 
« Id.,  72. 

6  Story  on  the  Constitution,  Sec.  1693. 


44  ESSAYS  AND  ADDRESSES 

posing  the  greater  and  the  controlling  obligation; 
and  allegiance  to  the  State  is  degraded  to  a  deriva 
tive  and  dependent  allegiance,  imposing  no  obliga 
tion  in  competition  with  the  original  and  supreme 
allegiance.  "  All  persons  born  or  naturalized  in 
the  United  States  are  citizens  of  the  United  States 
and  of  the  State  in  which  they  reside."  7  Thus, 
citizenship  is  created  by  the  Federal  Government, 
and  prescribed  by  it  to  the  State.  Accordingly, 

"  A  citizen  of  a  State  is  now  only  a  citizen  of  the 
United  States  residing  in  that  State."  8  "  Citizen 
ship  of  the  United  States  is  the  primary  citizenship ; 
State  citizenship  is.  secondary  and  derivative,  de 
pending  upon  citizenship  of  the  United  States."  9 

Thus,  by  the  new  Amendments  the  fundamental 
postulate  of  secession  and  nullification,  namely,  the 
supremacy  of  the  State  citizenship  and  State  allegi 
ance,  is  destroyed,  and  in  its  stead  is  substituted 
the  contradictory  principle  of  the  supremacy  of 
national  citizenship  and  national  allegiance  —  a 
principle  which  necessarily  involves  negation  of  the 
right  of  secession  and  nullification. 

By  another  provision  of  the  new  Amendments 
still  another  implied  but  emphatic  protest  against 
the  right  of  secession  protects  the  integrity  of  the 
Union.  The  first  section  of  Article  XIV  forbids 
a  State  to  abridge  "  the  privileges  or  immunities 
of  citizens  of  the  United  States."  But  the  assump- 

7  Amendments,  Article  XIV.,  Sec.  I. 

8  Slaughter-house  Cases,  95. 
» Id.,  112. 


ESSAYS  AND  ADDRESSES  45 

tion  that  a  State  may  leave  the  Union  at  will  neces 
sarily  involves  the  admission  that  a  State  may  not 
only  "  abridge "  but  abolish  the  "  privileges  and 
immunities  of  citizens  of  the  United  States  " ;  for 
manifestly  no  federal  privilege  or  immunity  can 
attach  to  a  community  not  in  the  Union. 

Even  more  decisive  against  the  hypothesis  that 
secession  may  still  consist  with  the  Constitution,  is 
the  provision  by  which  Congress  is  armed  with 
plenary  power  to  enforce  all  the  guaranties  of  the 
new  Amendments.  By  this  provision  the  nation 
assumes  supremacy  and  sovereignty  over  the  States ; 
and  unless  a  right  to  coerce  a  State  be  compatible 
with  the  right  of  a  State  to  secede,  this  provision 
annihilates  secession. 

Suffer  me  to  deduce,  as  a  corollary  from  the 
foregoing  argument,  a  hope  that  Judge  Tourgee's 
imagination  will  be  no  longer  affrighted  by  the 
phantom  of  secession. 

But,  secondly,  Judge  Tourgee's  chief  criticism  of 
the  new  Amendments  is  directed  against  the  pro 
visions  affecting  the  elective  franchise;  and  he  ex 
pends  much  labor  in  an  effort  to  show  that  they  are 
altogether  insufficient  as  a  guaranty  of  suffrage  to 
the  negro.  Indisputably,  if  their  object  was 
formally  to  confer  the  suffrage*  upon  the  negro, 
these  Amendments  have  miscarried  in  their  design, 
although  in  effect  they  may  in  a  certain  predica 
ment  invest  him  with  the  elective  franchise.10 

In  readjusting  the  relations  of  the  Government 
10  £*  parte  Yarborough,  no  U.  S.,  665. 


46  ESSAYS  AND  ADDRESSES 

and  people  after  emancipation,  it  was  as  competent 
to  the  nation  to  make  the  negro  a  voter  as  to  make 
him  a  citizen;  but  such  degradation  of  the  States, 
by  depriving  them  of  the  distinctive  feature  of 
autonomy,  namely,  the  right  to  create  and  qualify 
the  electoral  body,  was  not  in  the  minds  of  the 
framers  of  the  new  Amendments,  who  even  in  that 
tremendous  crisis  adhered  tenaciously  to  the  char 
acteristic  principles  of  the  federal  system.  They 
plainly  desired  that  the  newly-enfranchised  class 
should  be  invested  writh  the  suffrage;  but  they 
recognized  that,  in  conformity  with  the  genius  of 
our  institutions,  the  right  to  vote  was  within  the 
gift  of  the  State,  and  not  of  the  United  States. 
So,  by  the  second  section  of  the  Fourteenth  Amend 
ment,  the  most  persuasive  argument  was  employed 
to  induce  the  States  to  confer  the  elective  franchise 
on  the  negro,  namely,  the  provision  that  if  he  be 
not  a  voter  he  shall  not  be  a  constituent  of  repre 
sentation.  It  being  apprehended,  however,  that 
not  even  the  aggrandizement  of  their  political 
power  would  avail  alone  to  move  the  Southern 
States  to  bestow  the  suffrage  on  the  negro,  the 
nation,  then,  by  the  Fifteenth  Amendment,  forbade 
any  discrimination  against  him  in  conferring  the 
right  to  vote.  Further  than  this  the  new  Amend 
ments  do  not  guarantee  the  elective  franchise  to 
the  negro.  Is  this  guarantee  sufficient?  Judge 
Tourgee  contends  that  it  is  not ;  I  affirm  that  it  is. 
The  interdict  in  the  Fifteenth  Amendment 
against  denying  or  abridging  the  right  to  vote  on 


ESSAYS  AND  ADDRESSES  47 

account  of  race  or  color,  not  only  prevents  the  ab 
solute  disfranchisement  of  the  negro,  but  insures 
him  also  an  equality  of  electoral  capacity;  for  a 
prescription  of  different  qualifications  involves 
necessarily  an  abridgment  of  the  right  to  vote  of 
the  race  upon  whom  the  more  onerous  condition  is 
imposed.  Hence  the  fact  that  in  every  State  of 
the  Union  the  black  man  is  a  voter,  and  a  voter 
upon  precisely  the  same  conditions  as  are  pre 
scribed  for  the  white  man. 

But,  it  is  said,  the  States  may  deprive  the  negro 
of  the  suffrage.  So  likewise  may  they  deprive 
the  white  man.  Nay,  so  must  they  deprive  the 
white  man,  for  under  the  Fifteenth  Amendment  no 
disqualification  can  be  applied  to  the  black  man 
that  is  not  equally  operative  against  the  white ; 
and,  conversely,  whatever  qualification  is  conferred 
on  the  white  man,  ipso  facto  operates  to  make  the 
negro  a  voter.11  The  States  can  disfranchise  the 
negro  not  otherwise  than  by  disfranchising  at  the 
same  stroke  the  white  man.  Any  enfranchisement 
must  embrace  both  classes  equally  and  alike;  any 
proscription  must  include  both  classes  equally  and 
alike.  Again,  any  disfranchisement  of  the  negro 
by  a  State  reduces  proportionally  its  political  power 
—  its  vote  in  the  House  of  Representatives  and  its 
vote  in  the  Electoral  College.  That  the  South 
should  so  sacrifice  its  influence  in  the  government  is 
an  event  that  has  not  happened,  and  that,  we  may 
be  sure,  will  not  happen.  And  still  more  incon- 
11  Ex  parte  Yarborough,  loc.  cit. 


48  ESSAYS  AND  ADDRESSES 

ceivable  is  it  that,  in  order  to  disfranchise  the 
negro,  the  white  men  of  the  South  will  voluntarily 
disfranchise  themselves. 

Thus,  by  the  conjoint  effect  of  these  two  provi 
sions  in  the  new  Amendments,  the  negro  is  abun 
dantly  guaranteed  in  the  enjoyment  of  the  elective 
franchise. 

But  Judge  Tourgee  propounds  a  construction  of 
the  Fifteenth  Amendment  which,  if  tenable,  would 
indeed  arm  the  States  with  power  to  withhold  the 
suffrage  from  the  negro ;  and  it  is  that  construction 
which  inflames  him  with  indignation  and  alarm  for 
the  imperiled  rights  of  the  colored  people.  The 
language  of  the  Amendment  is :  "  The  right  of 
citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  on  account  of  race,"  etc.  In 
his  exposition  of  the  sense  of  these  words  the 
learned  commentator  assumes  that  "the  term 
'  right  to  vote  '  means  the  vested  right  of  a  duly 
qualified  voter  "  ;  that  one  who  "  has  never  possessed 
the  right  to  vote  has  not  a  right  to  vote  which  can 
be  denied  or  abridged."  And  from  this  postulate 
he  deduces  the  inference  that  the  only  operation  of 
the  Fifteenth  Amendment  is  to  prevent  the  depriva 
tion  of  an  already  enfranchised  voter  —  to  hinder 
the  taking  away  of  what  the  citizen  has;  but  that 
the  provision  is  utterly  ineffectual  to  prevent  with 
holding  the  suffrage  from  any  one  in  whom  it  is 
not  actually  vested.  In  other  words,  the  proposi 
tion  is  that  while  the  Fifteenth  Amendment  disables 
a  State  to  disfranchise  existing  voters  on  account 


ESSAYS  AND  ADDRESSES  49 

of  race,  etc.,  the  State  is  not  restrained  from  refus 
ing  to  confer  the  suffrage  on  a  negro  in  whom  it 
is  not  already  vested.  That  I  am  not  gratuitously 
imputing  to  Judge  Tourgee  a  far-fetched  and  fan 
tastic  conceit  is  demonstrated  by  his  own  explicit 
affirmation  of  power  in  a  State  "  to  provide  that, 
on  and  after  a  certain  date,  only  white  males  should 
become  voters  on  arriving  at  the  age  of  twenty-one 
years."  Surely,  no  argument  can  be  necessary  to 
exhibit  the  absurdity  of  this  proposition.  Its 
basis  is  a  verbal  quibble  as  strained  and  fanciful 
as  that  by  which  in  former  days  a  certain  Aboli 
tionist  essayed  to  prove  that  the  Constitution  for 
bade  restitution  of  fugitive  slaves :  "  No  person 
held  to  service  or  labor  in  one  State,  escaping  into 
another  .  .  .  shall  be  delivered  up."  If  the 
provision  were  that  no  citizen  shall  be  deprived  of 
the  right  to  vote,  there  might  be  some  plausibility 
in  the  contention ;  but  as  it  is  the  denial  of  the  right 
that  is  prohibited,  such  prohibition  is  violated  when 
ever  concession  of  the  right  is  refused.  Indeed, 
Judge  Tourgee  himself  admits  that  the  purpose  in 
the  adoption  of  the  Amendment  was  "  to  provide 
that  a  colored  man  should,  in  every  State  and  for 
all  time,  be  entitled  to  become  a  voter  upon  the 
same  terms  and  conditions  as  the  white  man  " ;  and 
the  words  employed  are  apt  and  efficient  to  accom 
plish  the  purpose. 

Whether  Judge  Tourgee  intends  modestly  to 
suggest  a  doubt  as  to  the  validity  of  his  contention, 
or  means  rather  to  claim  the  merit  of  originality 


50  ESSAYS  AND  ADDRESSES 

for  his  discovery,  he  admits  that  "  the  view  now 
presented  has  not  been  taken  by  juridical  writers." 

It  is  said  above  that,  under  certain  circumstances, 
the  effect  of  the  Fifteenth  Amendment  might  be 
to  confer  the  elective  franchise  on  the  negro;  but 
even  then,  that  effect  is  dependent  upon  the  voli 
tion  of  the  State.  The  language  of  the  Amend 
ment  is  merely  negative  —  not  bestowing  suffrage, 
but  only  forbidding  a  deprivation  of  it  on  account 
of  race,  color,  or  condition.  It  is  by  compelling  a 
choice  between  the  admission  of  the  negro  and  the 
exclusion  of  the  white  man,  that  the  former  may 
be  incidentally  invested  with  the  right  to  vote;  but 
still  the  State  is  free  to  elect  between  the  alterna 
tive  propositions,  and  so  may  defeat  negro  suffrage, 
as  it  may  defeat  white  suffrage.  In  either  case  it 
is  the  will  of  the  State  that  determines  the  event. 
It  results,  therefore,  that  the  Fifteenth  Amend 
ment  is  obnoxious  to  neither  of  the  two  objections 
leveled  against  it  from  opposite  quarters  —  from 
one  quarter,  that  it  imperatively  bestows  suffrage 
on  the  negro;  from  the  other,  that  it  affords  no 
adequate  guaranty  against  the  exclusion  of  the 
negro  from  the  elective  franchise.  Precisely  the 
same  guaranty  secures  suffrage  to  the  negro  and  to 
the  white  man;  namely,  an  identical  qualification 
for  both  and  a  loss  of  political  power  consequent 
on  the  proscription  of  either. 

Enough  is  written,  I  trust,  to  vindicate  the  new 
Amendments  from  the  disparagements  of  a  critic 
to  whom,  one  would  suppose,  they  would  appear  of 


ESSAYS  AND  ADDRESSES  51 

inestimable  moment  and  value,  as  imparting  and 
securing  all  the  rights  and  privileges  of  American 
citizenship  to  the  race  of  which  he  has  approved 
himself  the  able  and  enthusiastic  champion. 

Along  with  Magna  Charta  and  the  Declaration 
of  Independence,  these  ordinances  will  descend  to 
the  remotest  posterity  as  monuments  of  human 
freedom  and  progress. 


Ill 

THE    SOLDIER   THE    FRIEND    OF   PEACE 
AND   UNION 


Ill 

THE    SOLDIER    THE   FRIEND   OF    PEACE 
AND  UNION 

[The  proceedings  on  the  evening  of  Decoration  Day,  May 
30,  1877,  in  the  Academy  of  Music,  Brooklyn,  were  character 
ized  by  this  circumstance  of  special  interest:  that  it  was  the 
first  reunion  in  the  country  of  Federal  and  Confederate 
soldiers  after  the  close  of  the  Civil  War.  General  Catlin,  a 
distinguished  hero  of  the  War,  spoke  as  the  representative  of 
the  Federal  army ;  General  Pryor  gave  expression  to  the  senti 
ments  of  Confederate  veterans  on  the  interesting  occasion. 
The  following  correspondence  sufficiently  explains  the  publica 
tion  of  the  speech  here  presented: 

BROOKLYN,  N.  Y.,  June  6,  1877. 
To  THE  HON.  ROGER  A.  PRYOR  : 

Sir — Your  address  at  the  Academy  of  Music,  in  this  city,  on 
the  evening  of  Decoration  Day,  has  struck  us  as  so  valuable  a 
contribution  to  the  history  of  the  time,  and  as  so  likely  to  con 
duce  to  the  growth  and  strength  of  amicable  relations  through 
out  the  country,  that  we  consider  its  extensive  circulation  very 
desirable.  To  that  end  we  respectfully  ask  that  it  may  be 
published  in  pamphlet  form. 

WILLIAM  C.  DE  WITT,  FREDERICK  A.  SCHROEDER, 

JOHN  P.  ROLFE,  JOHN   GREENWOOD, 

WINCHESTER  BRITTON,  SAMUEL  D.  MORRIS, 

B.  F.  TRACY,  'ABRAHAM  H.  DAILEY, 

A.  W.  TENNEY,  GEO.  G.  REYNOLDS, 

GEO.  H.  FISHER,  ALBERT  DAGGETT, 

JOHN  A.  LOTT,  J.  S.  T.  STRANAHAN, 

JOSHUA  M.  VAN  COTT,  DEMAS  STRONG, 

JACOB  I.  BERGEN,  JOHN  W.  HUNTER, 

EDGAR  N.  CULLEN,  STEWART  L.  WOODFORD, 

JOHN  WINSLOW,  J.  W.  GILBERT, 

ALEX.  McCuE,  JOHN  R.  KENNADAY, 

HENRY  C.  MURPHY,  LUCIEN  BIRDSEYE. 

55 


56  ESSAYS  AND  ADDRESSES 

BROOKLYN,  147  Willow  St., 

June  9,  1877. 
GENTLEMEN  : 

My  aim  in  preparing  the  address  was  to  promote  the 
"growth  and  strength  of  amicable  relations  throughout  the 
country,"  and  since  you  assure  me  its  publication  may  conduce 
to  that  result,  I  have  pleasure  in  placing  it  at  your  disposal. 
With  a  grateful  sense  of  the  kindness  implied  by  your  re 
quest,  I  am,  gentlemen, 

Most  respectfully, 

Your  obedient  servant, 

ROGER  A.  PRYOR. 
Messrs.  William  C.  De  Witt,  and  others.] 

WHILE  thanking  you,  gentlemen  of  the  com 
mittee,  for  the  invitation  which  privileges  me  to 
be  present  on  this  interesting  occasion,  I  owe  it  to 
candor  to  disclaim  the  affectation  of  regarding 
your  civility  as  implying  in  any  sense  a  personal 
compliment.  It  bears,  I  know,  a  weightier  and  a 
worthier  significance.  In  soliciting  the  participa 
tion  of  Confederate  soldiers  in  the  solemnities  of 
this  day,  you  mean  to  tender  them  an  overture  of 
reconciliation,  to  avow  your  good-will  toward  your 
recent  adversaries,  and  to  proclaim  your  desire  for 
the  prevalence  of  peace  and  fraternal  feeling  be 
tween  the  lately  belligerent  sections.  By  no  token 
more  touching  and  impressive  could  you  make  man 
ifest  these  liberal  and  patriotic  sentiments.  To 
proffer  your  former  foes  a  share  in  the  simple  but 
pathetic  ceremonial  by  which,  on  this  hallowed 
anniversary,  you  symbolize  the  perennial  bloom 
and  fragrance  associated  with  the  memory  of  your 
departed  comrades,  to  admit  us  into  the  sanctuary 


ESSAYS  AND  ADDRESSES  57 

of  your  sorrows,  and  allow  us  to  unite  in  the 
homage  you  render  to  the  fallen  heroes  of  the 
Union,  is  indeed  so  affecting  a  testimonial  of  your 
kindness  and  magnanimity,  that  we  unreservedly 
yield  ourselves  to  its  benign  influences  and  recip 
rocate,  with  all  the  warmth  or  our  ardent  Southern 
nature,  the  inarticulate  but  heartfelt  aspiration  for 
the  reign  of  peace  and  good-will  over  our  agitated 
and  afflicted  land. 

That  from  our  bosoms  every  vindictive  and  un 
charitable  recollection  of  the  unhappy  conflict  is 
banished,  never  to  return,  we  this  day  attest  by  the 
last  act  of  concession  and  conciliation  —  even  by 
bearing  the  tribute  of  praise  and  benediction  to  the 
tomb  by  whose  hand  our  Confederate  Republic 
was  stricken  down. 

By  a  solemnity  so  impressive,  by  a  sacrifice  so 
transcendent,  the  soldiers  of  the  lately  contending 
armies  trust  to  propitiate  the  fell  spirit  of  discord, 
and  to  gladden  the  nation  once  more  with  the  bless 
ings  of  a  restored  and  reconciled  country. 

And  this,  the  highest  office  and  most  precious 
service  of  patriotism,  is  fitly  appropriated  and  dis 
charged  by  the  soldier;  for,  was  not  the  soldier 
ever  the  friend  of  peace  and  the  Union? 

If  we  carry  back  our  memories  to  the  contro 
versy  which  eventually  issued  in  the  war,  we  shall 
recall  the  name  of  no  soldier,  on  either  side,  who 
aided  to  inflame  the  animosities  of  section  and  pre 
cipitate  the  collision.  The  bloody  business  of 
secession,  with  all  its  disastrous  consequences,  was 


58  ESSAYS  AND  ADDRESSES 

wholly  the  act  of  the  professed  men  of  peace  — 
the  politicians.  They  nullified  the  Constitution  in 
its  plainest  and  most  peremptory  obligation;  they 
broke  that  compact  of  pacification  —  the  Missouri 
Compromise  —  under  which  the  Union  had  re 
posed  for  nigh  forty  years;  they  rekindled  and 
blew  into  conflagration  the  almost  extinct  embers 
of  the  abolition  agitation;  they  obtruded  into  the 
presence  of  the  Supreme  Court  with  their  factious 
clamor,  and  compelled  even  that  august  tribunal  to 
become  accomplice  in  the  work  of  commotion ;  they 
lashed  the  popular  mind  into  fury  over  imaginary 
wrongs,  and  to  intercept  the  occurrence  of  fictitious 
evils  occasioned  a  catastrophe  which  actually 
afflicted  the  country  with  every  conceivable  calam 
ity.  To  vindicate  the  abstract  right  of  potential 
secession  they  challenged  an  encounter  which  issued 
in  the  irresistible  aggrandizement  of  the  Federal 
power;  to  preserve  the  ideal  existence  of  slavery 
in  the  Territories  they  provoked  a  war  which  ended 
in  the  annihilation  of  slavery  in  the  States. 

Meanwhile  the  soldiers  of  the  nation,  no  matter 
where  their  birth  or  what  their  political  opinions, 
uniformly  opposed  themselves  to  every  act  and 
every  word  of  which  the  aim  or  tendency  was  to 
engender  ill-feeling  between  the  States  or  impair 
the  stability  of  the  Union.  The  illustrious  Scott, 
hero  of  two  wars,  victor  on  the  far  distant  battle 
fields  of  Chippewa  and  Cerro  Gordo,  achieved,  in 
his  endeavor  to  arrest  the  progress  of  disunion,  a 


ESSAYS  AND  ADDRESSES  59 

civic  crown  no  less  resplendent  than  his  martial 
fame.1 

And  that  other  Federal  soldier,  right  arm  of 
Scott  in  his  career  of  conquest,  whom  to  name  now 
might  perchance  jar  upon  the  harmonies  of  the 
occasion,  but  of  whose  exploits  history  nevertheless 
will  make  due  celebration  in  her  immortal  epic  — 
he,  like  his  great  chief,  was  pierced  with  the 
anguish  of  despair  by  the  menace  of  civil  war. 
Not  the  ill-fated  Falkland  himself  was  more  ten 
derly  enamored  of  peace,  or  more  passionately 
prayed  Heaven  to  avert  from  his  country  the  agony 
and  the  ignominy  of  fratricidal  strife,  than  he  who 
by  the  cruel  irony  of  fate  was  destined  to  lead  the 
Confederate  armies  through  so  much  carnage  in  a 
hopeless  struggle  with  the  Union. 

And  so  with  all.  Call  the  roll  of  fighting  men, 
whether  in  the  army  or  the  navy,  and  mark  one 
known  to  fame  who  was  not  the  friend  of  peace, 
the  advocate  of  conciliation.  The  soldier  is  a 
patriot  from  necessity — 'by  the  habits  of  educa 
tion,  and  by  the  instincts  of  honor,  which  to  him 
are  the  principles  of  nature.  Identified  with  the 
fortunes  of  no  party,  implicated  in  the  intrigues  of 
no  faction,  he  looks  to  the  country,  the  whole  coun 
try,  for  the  recognition  and  reward  of  his  valor. 
Meaning  himself  to  fight  if  peace  be  impossible,  and 
well  aware  that  war  is  the  consummation  of  human 

1  Allusion  to  General  Scott's  suppression  of  the  South  Caro 
lina  Nullification  movement  in  1833. 


60  ESSAYS  AND  ADDRESSES 

woe,  he  shrinks  back  from  the  dread  arbitrament 
till  duty  bids  him  draw  the  sword. 

And  so,  while  free  from  the  awful  responsibility 
attaching  to  any  the  least  agency  in  causing  the 
conflict  of  1 86 1,  yet  when  by  the  follies  and  the 
crimes  of  the  politicians  the  crisis  came,  the  sol 
dier  was  prompt  to  respond  to  the  call  of  his  coun 
try. 

His  country  —  but  where  was  his  country  ? 
Upon  this  momentous  question  the  simplicity  of 
the  military  man  was  perplexed  by  the  sophistica 
tions  of  the  politicians.  To  the  Southern  soldier 
the  State  —  the  sovereign  State  —  whose  guardian 
care  he  felt  in  every  interest  and  relation  of  life, 
whose  bosom  was  for  him  the  "  mother  earth  " 
whence  he  sprang  and  to  which  he  would  return 
in  the  sepulchres  of  his  fathers  —  to  the  reason 
and  affection  of  the  Southern  soldier  the  State  ap 
pealed  with  a  supreme  and  irresistible  title  to 
allegiance.  But  Federal  soldiers!  Your  country 
was  commensurate  with  the  limits  of  the  united 
States;  the  symbol  of  your  fealty  was  the  flag 
floating  over  the  undivided  and  indivisible  expanse 
of  the  Republic;  the  cause  for  which  you  fought 
was  the  Union  inviolate  and  inviolable. 

At  this  point  of  political  divergence  parted  the 
soldier  of  the  North  and  of  the  South  —  each  im 
pelled  by  a  motive  of  genuine  patriotism,  each 
contending  for  a  cause  which  shone  clear  to  his 
conscience,  each  striving  after  an  object  deemed 
worthy  of  heroic  effort  and  heroic  sacrifice.  Hap- 


ESSAYS  AND  ADDRESSES  61 

pily  for  the  infirmities  of  human  nature,  the 
Supreme  Ruler,  in  dispensing  his  retributions  by 
means  of  the  moral  judgments  of  the  world,  com 
passionates  the  errors  of  man  and  to  his  motives 
only  imputes  culpability,  From  the  reproach  of 
conscious  wrong  the  soldier  of  the  South  is  free; 
and  if,  in  lifting  his  hand  against  the  majesty  of 
the  Republic,  he  were  in  fault,  grievously  has  he 
answered  it!  Obdurate  indeed  must  be  the  heart 

—  harder  than  the  rock  hewn  from  the  Caucasus 

—  that  can  look  abroad  over  the  wasted  fields  and 
the  desolate  homes  and  the  stricken  families  of  the 
South,  and  not  melt  into  pity  at  the  spectacle  of 
so  much   suffering  and  so  much  sorrow.     In  the 
bloody   conflict   friends  were   lost   to   you, — over 
their  graves  we  have  strewn  to-day  garlands   of 
amaranthine  bloom, — but  far  from  your  homes  and 
your  harvests  rolled  the  lava  tide  of  war;  and  in 
the  triumph  of  your  cause  you  found  a  consoling 
recompense  for  your  bereavements.     Men  died,  but 
the  Union  lived;  and  the  earth  was  filled  with  the 
echoes  of  your  acclamation.     But  for  the  Confed 
erate  soldier  all  was  lost ;  and  as  he  came  back  from 
his  captivity  silence  greeted  him  with  the  welcome 
of  despair!     Feel  you  not  that  to  exult  over  his 
misfortunes  ill-beseems  the  pride  of  a  magnanimous 
foe! 

So  much  in  any  event  is  certain,  that  by  fear 
lessly  fronting  death,  and  by  the  heroic  endurance 
of  pains  and  privations  worse  than  the  agony  of 
death,  the  Confederate  soldier  vindicated  tri- 


62  ESSAYS  AND  ADDRESSES 

umphantly  the  sincerity  of  his  conviction  and  made 
good  whatever  claim  to  your  consideration  is  im 
plied  in  an  unselfish  devotion  to  a  cherished  though 
vanquished  cause.  Victrix  causa  diis  placuit  sed 
victa  Catoni. 

No  blame,  then,  for  that  stupendous  folly,  the 
war  of  secession,  attaches  to  the  men  who  bore  its 
brunt.  The  politician  began  it;  the  soldier  ended 
it.  And,  during  its  progress,  whatever  of  barbar 
ity  aggravated  its  essential  ills  is  imputable,  not  to 
the  fighting  man,  but  to  the  civilian.  Clemency 
no  less  than  courage  is  the  ornament  of  true 
knighthood ;  but  while  the  soldier's  spirit  is  exalted 
by  the  ambition  of  glorious  deeds,  the  politician 
stoops  to  mean  resentments  and  ignoble  reprisals. 
For  those  acts  of  vengeance  of  which  each  side 
hastens  now  to  exculpate  itself  to  history,  but  over 
which  it  behooves  both  to  drop  the  veil  of  obliv 
ion  —  for  those  dastardly  and  despicable  inhumani 
ties  the  men  of  the  cabinet  are  accountable;  and 
the  luster  of  Grant's  and  Lee's  renown  is  untar 
nished  by  the  atrocities  of  the  prison-camp.  The 
columns  of  neither  army,  in  their  intrepid  onset, 
were  inflamed  by  the  incitements  of  passion ;  but  in 
the  fury  of  the  combat  feeling  still  for  his  foe  the 
affection  of  a  former  and  a  future  brother,  the 
soldier  gladly  sheathed  his  sword  from  his  bloody 
execution.  In  every  pause  of  battle  the  contend 
ing  hosts  intermingled,  and  for  their  involuntary 
cruelties  made  atonement  by  an  eager  interchange 
of  the  charities  of  humanity.  On  the  field  of 


ESSAYS  AND  ADDRESSES  63 

Antietam,  while  the  carnage  stayed  that  the 
wounded  and  the  dying  might  be  taken  away  from 
the  dreadful  scene,  a  Confederate  general  [the 
speaker]  and  your  own  gallant  Meagher  grasped 
hands,  in  pledge  of  a  friendship  the  shock  of  war 
could  not  break  asunder,  and  in  instinctive  but  un 
spoken  presage  of  a  community  of  country  that  re 
turning  peace  should  restore  and  perpetuate. 

But  it  was  in  the  final  catastrophe  of  the  contest 
that  the  spirit  of  chivalry  attained  its  appropriate 
culmination  —  when  the  great  captain  of  the  armies 
of  the  Union,  in  accepting  the  surrender  of  his 
equally  great  antagonist,  spared  him  the  humilia 
tions  of  defeat,  and  to  him  and  his  vanquished  vet 
erans  accorded  the  tribute  of  glory  due  to  a  frus 
trate  but  heroic  struggle.  Then  was  exhibited  in 
no  unequal  measure  the  greatness  of  soul  with  which 
the  Roman  conqueror  saluted  the  misfortunes  of 
the  Macedonian  monarch;  and  then  too  did  the 
leader  of  the  "  Lost  Cause  "  by  his  unshaken  equa 
nimity  put  to  shame  the  supplications  of  Alexander's 
degenerate  successor. 

Such  being  the  spirit  of  the  soldiers  in  the  war, 
no  wonder  they  hailed  with  enthusiasm  the  advent 
of  peace ;  no  wonder  that  from  the  slaughter  of  com 
patriots  their  impatient  hand  turned  with  alacrity  to 
the  blessed  work  of  pacification. 

With  what  eager  overtures  of  reconciliation  did 
Sherman  signal  to  Johnston  to  desist  from  the  un 
natural  contest ;  and  with  what  a  wise  magnanimity 
did  he  lure  the  heart  of  his  adversary  back  to  its 


64  ESSAYS  AND  ADDRESSES 

early  love  for  the  Union.  Brilliant  though  be  the 
campaign  by  which  he  cut  the  Confederacy  asun 
der,  his  most  worthy  achievement  was  the  capitula 
tion  of  Raleigh,  for  by  that  act  of  intrepid  gener 
osity  he  made  conquest  of  the  affections  of  his  foe, 
and  transformed  an  embattled  host  into  a  com 
munity  of  grateful  citizens.  Had  not  that  aus 
picious  compact  been  annulled  by  the  intrigues  of 
the  politicians,  had  its  benign  spirit  informed  and 
actuated  all  subsequent  policies  of  reconstruction, 
the  darkest  page  in  the  history  of  the  Republic 
would  not  remain  yet  to  be  written,  and  this  glad 
day  of  reconciliation  would  have  been  anticipated 
by  many  long  and  agonizing  years.  No,  fellow- 
citizens,  for  the  interval  of  gloom  and  shame  lying 
between  the  baleful  splendor  of  the  war  and  the 
present  golden  dawn  of  peace ;  for  the  nameless  out 
rages  and  ignominies  of  that  dismal  period, — 
massacres  of  the  helpless,  violations  of  the  ballot, 
usurpations  of  force  on  the  popular  will  and  the 
independence  of  the  States, —  with  these  affronts  to 
freedom  and  civilization  the  soldier  may  not  be  re 
proached.  His  intervention,  when  at  times  it  has 
happened  to  arrest  the  operation  of  constitutional 
government,  was  not  the  effect  of  his  own  volition ; 
for  standing  guard  over  imprisoned  liberty  is  not 
the  willing  service  of  the  American  soldier;  and  if 
he  appeared  on  the  scene  of  confusion,  his  presence 
was  ever  the  guaranty  of  order  and  tranquillity. 
When  a  detachment  of  troops  occupied  the  capitol 
of  South  Carolina,  the  hitherto  unsullied  sanctuary 


ESSAYS  AND  ADDRESSES  65 

of  its  sovereignty,  they  moved  in  submission  to  an 
order  from  Washington;  but  when  afterward  the 
Federal  soldiers  in  New  Orleans  fraternized  with 
Confederates  in  celebrating  the  deliverance  of 
Louisiana,  they  responded  to  the  spontaneous  and 
exultant  impulse  of  their  own  gallant  spirits. 

In  the  system  of  American  government  the  auton 
omy  of  the  State  is  a  no  less  essential  principle  than 
the  liberty  of  the  individual;  exists,  indeed,  only  as 
the  support  and  safeguard  of  the  personal  rights; 
and  when  in  the  march  of  encroachment  the  inde 
pendence  of  the  State  is  subdued,  the  freedom  of  the 
citizen  is  exposed  to  an  easy  and  irresistible  subjec 
tion. 

But  a  scheme  of  administration  by  which  the  civil 
was  subordinated  to  the  military  power,  and  the 
prodigy  of  republican  institutions  under  the  patron 
age  of  bayonets  exhibited  to  the  wondering  gaze  of 
the  world,  by  which  that  most  precious  principle  of 
American  liberty,  the  right  of  local  self-government, 
was  subverted  and  on  its  ruin  erected  a  repulsive 
compound  of  alien  rule  and  Federal  domination;  by 
which  sovereign  States  were  reduced  to  the  impo 
tence  of  satrapies  and  a  commandant  of  the  bar 
racks  invested  with  the  majesty  of  the  people:  such 
a  scheme  of  administration,  however  specious  the 
pretext  of  its  existence,  and  however  formidable 
the  forces  enlisted  in  its  support,  was  doomed  from 
the  beginning,  and  by  the  organic  vice  of  its  being, 
to  an  inevitable  and  ignominious  overthrow. 
Fallen  it  is  at  last;  fallen  like  Lucifer,  never  to  hope 


66  ESSAYS  AND  ADDRESSES 

again;  fallen  by  the  thunderbolt  of  the  people's 
wrath ;  and  as  it  topples  down  "  in  hideous  ruin 
and  combustion,"  the  nation  hails  with  acclama 
tion  the  returning  reign  of  freedom  and  peace. 

And  by  none  is  the  auspicious  day  of  liberation 
and  reconciliation  saluted  with  more  enthusiasm 
than  by  the  veterans  of  the  Union  army.  In  the 
phantom  of  "  the  bloody  shirt  "  and  the  specter  of 
the  "  prostrate  State "  factions  found  available 
topics  of  incendiary  appeal,  and  politicians  combine 
now  to  accuse  and  obstruct  a  pacification  which 
threatens  to  leave  neither  party  a  cherished  wrong 
to  expose  nor  a  fondly  nursed  grievance  to  de 
nounce  ;  but  the  soldier,  instinct  with  a  better  patriot 
ism,  seeks  no  object  besides  the  welfare  of  the 
country  and,  informed  by  a  truer  wisdom,  knows  no 
other  policy  than  the  counsels  of  conciliation. 

Yes,  fellow-citizens,  the  Union  is  re-established; 
re-established  not  only  in  the  supremacy,  but  in 
the  beneficence  of  its  power;  re-established  not 
merely  over  the  wills,  but  over  the  hearts  of  the 
people,  and  of  all  the  people.  While  its  privileges 
and  protection  were  unequally  dispensed,  while 
toward  the  South  the  Constitution  shone  with  a 
darkened  and  sinister  aspect,  the  affections  of  the 
people  were  chilled  and  their  confidence  repelled; 
but  now  that  every  State  is  respected  in  her  sov 
ereignty  and  every  man  in  his  rights,  the  Union  is 
restored  in  all  its  ancient  strength  and  glory:  and 
be  persuaded,  you  may  repose  as  serene  a  trust  on 
the  loyalty  of  Louisiana  as  upon  the  well-tried  fidel- 


ESSAYS  AND  ADDRESSES  67 

ity  of  your  own  great  commonwealth.  In  obliter 
ating  all  discriminations  between  States  and  between 
citizens,  you  have  effaced  the  ill-omened  distinc 
tion  of  sections,  and  henceforth  in  the  vocabulary 
of  American  politics  the  South  is  only  a  geograph 
ical  expression. 

And  this  is  the  tribute  a  Confederate  soldier 
brings  to-day  to  the  graves  of  the  fallen  heroes  of 
the  Union  —  the  solemn  assurance  that  they  fell  not 
in  vain, —  that  the  work  they  died  to  achieve  saved 
the  Union  from  overthrow,  you  by  the  policy  of 
justice  and  magnanimity  have  enshrined  it  in  the 
hearts  of  its  once  furious  but  now  reclaimed  and 
reconciled  foes. 

If  we  may  suppose  the  men  whose  deeds  you  now 
commemorate  to  be  attentive  still  in  their  blest 
abodes  to  the  transactions  of  their  surviving  com 
rades,  with  what  joy  and  exultation  do  they  contem 
plate  the  incidents  of  this  day!  Insensible  though 
they  be  to  the  echoes  of  earthly  applause,  even  their 
chastened  and  exalted  spirits  must  be  soothed  by  the 
solemn  acclaim  of  a  nation  rendering  homage  to 
the  virtues  of  its  heroic  dead.  But,  not  in  the  hush 
of  a  gracious  holiday,  nor  in  floral  offering,  nor 
martial  requiem,  nor  the  pomp  and  pageantry  of  a 
funeral  procession;  nor  yet  in  the  voice  of  renown 
reverberating  their  exploits  through  the  ages, —  not 
in  any  nor  in  all  of  these  celebrations  so  dear  to  the 
heart  of  mortal  hero  does  the  supreme  reward,  the 
true  triumph,  of  the  departed  soldiers  of  the  Union 
consist.  In  this  alone  is  their  glory  consummated 


68  ESSAYS  AND  ADDRESSES 

—  that  the  cause  for  which  they  gave  their  lives 
has  prevailed ;  in  this  alone  is  their  victory  complete 

—  that  the  republic  has  emerged  from  the  cloud  and 
carnage  of  war  unbroken  in  unity  and  undimmed  in 
luster ;  in  this  is  the  ecstasy  of  their  exultation  — 
that  hands  once  red  with  fraternal  blood  are  this 
day  clasped  in  pledge  and  proclamation  of  a  re 
stored  and  perpetual  brotherhood.     While  man  ap 
plauds,  heaven  ratifies  the  reunion,  and  beams  ap 
provingly  on  the  prevalence  of  charity  in  the  coun 
cils  of  nations. 

That  the  memories  of  intestine  war  oppose  no  ob- 
stable  to  the  reunion  and  harmonious  co-operation 
of  the  once  hostile  parties  and  dependencies,  expe 
rience  attests  by  abundant  and  most  instructive  in 
stances.  Indeed,  from  the  largest  induction  we 
may  infer  it  as  a  principle  of  political  philosophy, 
that  the  development  of  national  unity  is  accom 
plished  by  the  method  of  internal  agitation,  and  that 
the  coherence  of  the  aggregated  parts  of  a  state  is 
proportioned  to  the  violence  with  which  they  are 
brought  together.  For  illustration  we  have  no  need 
to  recur  to  the  remote  if  not  imaginary  examples  of 
classic  history;  for  of  the  annals  of  modern  times 
the  monotonous  lesson  is  that  empire  is  composed 
of  a  succession  of  conquests,  and  is  consolidated  by 
the  fierce  but  ineffectual  efforts  of  its  constituent 
members  to  resist  the  process  of  assimilation. 

In  France  the  war  of  the  Fronde  issued  in  the 
establishment  of  that  compactest  of  nationalities; 
and  of  the  followers  of  Napoleon  in  his  conquest  of 


ESSAYS  AND  ADDRESSES  69 

Europe  the  most  faithful  were  those  Vendeean 
Bourbons  who  so  desperately  resisted  the  regime  of 
the  revolution.  In  the  united  Germany  of  to-day 
we  see  the  result  of  centuries  of  civil  and  religious 
struggle;  nor  of  the  provinces  ruled  by  the  Kaiser 
are  they  the  least  docile  and  devoted  that  the  vic 
tory  of  Sadowa  gave  him.  Sweden  and  Norway 
have  accommodated  their  traditional  feuds  by  union 
under  a  single  crown;  while  Austria  and  Hungary, 
having  replaced  the  subjugation  of  1849  ^7  an  a^" 
liance  of  choice  and  equality,  move  onward  in  the 
path  of  prosperity  under  the  impulse  of  the  same 
will  and  an  identical  interest.  In  Italy  the  hates 
and  revenges  of  a  thousand  years'  domestic  conflict 
have  yielded  at  last  to  the  undying  instinct  of  na 
tionality;  and  Florence  and  Genoa,  Venice  and 
Rome,  are  once  more  embodied  in  the  unity  of  a 
free  and  mighty  empire.  Most  significant  of  all  is 
the  instance  of  Great  Britain ;  for  it  conveys  at  once 
a  promise  and  an  admonition ;  and  by  the  examples 
of  Scotland  and  Ireland  teaches  statesmen  as  well 
the  folly  of  a  prescriptive  as  the  wisdom  of  a  mag 
nanimous  policy.  The  boast  of  Chatham  was  not 
an  idle  vaunt.  The  hereditary  foe  of  the  Lowlander 
he  enticed  from  his  mountain  fastness,  tamed  his 
wild  spirit  to  the  arts  of  peace,  and,  by  according 
him  the  rights  of  a  freeman,  inspired  the  devotion 
that  stayed  the  onset  at  Waterloo  and  brought  re 
lief  to  the  despair  of  Lucknow.  But  Ireland  — 
after  ages  of  conquest  her  heart  still  spurns  the 
Saxon's  caress;  and  her  gallant  sons,  finding  in 


70  ESSAYS  AND  ADDRESSES 

their  native  land  neither  civil  nor  religious  liberty, 
to  the  aggrandizement  of  England's  rival  contribute 
the  strength  of  their  arm  and  the  wealth  of  their 
genius.  Ireland  to-day  repeats  the  mournful  re 
frain  of  history,  that  injustice  and  intolerance  are 
the  blight  of  empire ;  while  in  the  opulence  and  re 
pose  of  Scotland  we  behold  the  never- failing  effect 
of  a  policy  of  conciliation. 

No  cause  have  you,  people  of  the  North !  to  mis 
trust  the  professions  of  fealty  to  the  Union  by 
which  the  Confederate  soldier  requites  your  fidelity 
to  the  Constitution.  To  his  forefathers  history  as 
cribes,  and  you  will  not  refuse,  an  equal  hand  in 
forming  the  Union,  an  equal  contribution  to  its  re 
sources,  and  an  equal  courage  and  devotion  in  its 
defense.  From  the  day  a  Southern  soldier  took 
command  of  the  army  of  the  Revolution  in  the  capi 
tal  of  Massachusetts  down  to  that  recent  time  when 
another  Southern  soldier  led  the  armies  of  the  Union 
to  the  capital  of  Mexico,  the  men  of  the  South  have 
borne  a  not  inferior  part  in  every  effort  and  every 
sacrifice  for  the  glory  of  the  Union. 

Pardon  me  if  I  recall  that  it  was  a  Southern 
man  —  even  Washington  —  with  whom,  by  the 
suggestion  of  the  Conference  at  Annapolis  in  1786, 
originated  the  idea  of  the  Union;  that  by  another 
Southern  man  —  Randolph,  of  Virginia  —  the 
fundamental  plan  of  the  Union  was  propounded  to 
the  Convention  at  Philadelphia;  that  Virginia,  in 
conjunction  with  New  York,  determined  the  final 
adoption  of  the  compact  of  union;  that  it  was 


ESSAYS  AND  ADDRESSES  71 

Marshall,  the  Virginian,  who  by  authentic  and  au 
thoritative  construction  of  the  Federal  Constitu 
tion  endowed  the  Union  with  the  energies  of  a  na 
tion  and  enabled  it  to  survive  the  strain  of  civil 
war;  that  it  was  Monroe,  the  Virginian,  who,  by 
asserting  the  freedom  of  the  New  World  from  the 
intrigues  of  European  ambition,  opened  for  the 
Union  an  unimpeded  and  unbounded  arena  of  de 
velopment;  that  Virginia  of  her  bounty  brought  to 
the  bridal  of  the  young  Republic  the  gift  of  an  im 
perial  domain  —  and,  let  me  add,  all  shrunken  and 
beggared  as  she  is,  she  does  not  repent  that  she  im 
poverished  herself  for  the  aggrandizement  of  the 
Union;  that  by  the  skill  of  a  Southern  statesman 
the  navigation  of  the  Mississippi  was  liberated  from 
foreign  control  and  made  the  priceless  monopoly 
of  American  commerce;  that  by  a  Southern  Presi 
dent  the  second  war  of  independence  was  conducted 
to  a  successful  termination ;  that  by  the  diplomacy  of 
another  Southern  President  Texas  was  wooed  and 
won  to  the  embrace  of  the  Union;  that  under  the 
administration  of  still  another  Southern  President 
the  Union  was  enriched  and  embellished  by  our  gol 
den  conquests  on  the  Pacific.  Bear  with  me  while, 
not  in  the  ostentation  of  sectional  vainglory,  but 
merely  to  verify  the  fidelity  of  the  Confederate  sol 
dier  to  the  Union,  I  recount  these  among  the  many 
services  and  trophies  which  his  forefathers  have 
contributed  to  the  strength  and  grandeur  of  the  na 
tion. 

With  the  people  of  the  South  affection  for  the 


72  ESSAYS  AND  ADDRESSES 

Union  was  a  sentiment  of  ancestral  pride  as  well 
as  a  principle  of  traditional  policy;  and  only  by  the 
urgency  of  some  casual  and  extraordinary  crisis 
could  they  ever  have  been  precipitated  into  seces 
sion.  They  went  about  to  erect  a  separate  govern 
ment  for  themselves,  not  from  an  impulse  of  hos 
tility  to  the  Union,  but  from  attachment  to  prin 
ciples  they  had  been  taught  to  think  paramount  to 
the  Union  itself ;  and  in  parting  from  the  Union  they 
felt  all  the  pangs  of  violated  nature  as  well  as  the 
griefs  of  baffled  hope.  But  now  that  slavery  no 
longer  impinges  on  their  understanding  with  a  sin 
ister  bias,  and  the  idol  of  State  sovereignty  no 
longer  challenges  of  them  a  divided  duty,  love  of  the 
Union  resumes  its  original  ascendency  in  their 
hearts;  the  beneficence  of  the  Union  claims  a  su 
preme  consideration  in  their  counsels. 

Be  assured,  Southern  statesmanship  is  not  so 
blinded  in  its  proverbial  sagacity  as  not  to  see  that 
henceforth  the  strength  and  security  of  the  South 
are  to  be  found  only  under  the  shield  of  the  Union. 
Against  the  perils  of  foreign  invasion  it  gains  in  the 
Union  the  bulwark  of  a  mighty  prestige  and  an  in 
vincible  army.  As  a  guaranty  of  peace  between  its 
discordant  peoples  the  ever-imminent  intervention  of 
the  Federal  arm  will  operate  to  deter  the  unruly  and 
to  tranquillize  the  timid.  Freedom  and  facility  of 
access  to  every  part  of  this  vast  and  opulent  land 
open  to  the  enterprise  of  the  South  a  boundless  field 
of  adventure,  and  impart  to  its  industrial  and 
commercial  energies  a  quickening  impulse  of  de- 


ESSAYS  AND  ADDRESSES  73 

velopment  and  fruition.  Meanwhile,  an  expedient 
devised  to  balk  the  ambition  of  the  white  race  re 
coils  upon  its  course,  and,  by  augmenting  the  politi 
cal  power  of  the  South,  enables  its  aspiring  spirits 
to  play  a  splendid  and  superior  part  on  the  theater 
of  Federal  affairs. 

If,  in  contrast  with  the  brilliant  future  offered 
to  the  South  in  the  Union,  you  contemplate  for  a 
moment  the  destiny  to  which  it  would  be  condemned 
by  another  civil  convulsion,  caused  by  another  re 
volt  against  the  Federal  power;  the  havoc  and  car 
nage  of  a  war  aggravated  by  a  conflict  between 
races  and  issuing  inevitably  in  the  catastrophe  of  a 
remorseless  subjugation,  you  cannot,  on  the  suppo 
sition  that  the  Southern  people  are  rational  beings, 
impute  to  them  any  other  policy  or  purpose  than  to 
cleave  to  the  Union  as  their  only  and  their  all-suf 
ficient  shelter  and  support. 

But  you  say,  perhaps,  that  these  dictates  of 
reason,  obvious  and  imperative  though  they  be,  are 
counteracted  by  the  blind  impulses  of  passion;  that 
rage  at  the  miscarriage  of  his  cause,  revenge  for  the 
many  calamities  and  contumelies  he  suffered  from 
the  victorious  North;  that  all  the  unappeased  and 
inappeasable  resentments  of  the  war,  still  operate 
to  cherish  in  the  Confederate  soldier  undying  hate 
of  the  Union.  Now,  I  do  not  pretend  —  it  is  not 
essential  to  my  argument  to  pretend — -that  the 
Southern  soldier  contemplated  the  fall  of  the  Con 
federacy  with  indifference.  Born  of  an  enthusiasm 
for  liberty,  erratic,  if  you  please,  but  not  the  less 


74  ESSAYS  AND  ADDRESSES 

genuine  and  exalted ;  endeared  by  the  memory  of  so 
many  sacrifices  and  so  many  sorrows  heroically 
borne  in  its  behalf;  gilded  by  so  much  glory  and 
hallowed  by  the  blood  of  the  brave  and  the  tears  of 
the  fair,  its  disastrous  overthrow  smote  upon  the 
heart  of  the  Southern  soldier  with  an  anguish  he 
may  not  utter,  but  which  he  disdains  to  dissemble. 
Nor  will  you,  its  exultant  but  not  ungenerous  foe, 
grudge  him  who  followed  its  flag  through  the  few 
years  of  its  battle-crowded  career  this  mournful 
recollection  of  its  tragic  story. 

But  this  is  the  effusion  of  feeling;  an  homage  of 
the  heart  for  which  it  does  not  solicit  the  sanction 
of  reason.  From  the  vantage  ground  of  a  larger 
observation,  with  a  more  calm  and  considerate  medi 
tation  on  the  causes  and  conditions  of  national  pros 
perity;  I,  for  one,  cannot  resist  the  conclusion  that, 
after  all,  Providence  wisely  ordered  the  event,  and 
that  it  is  well  for  the  South  itself  that  it  was  dis 
appointed  in  its  endeavor  to  establish  a  separate 
government.  Plain  is  it  to  be  seen  now  that  such 
government,  if  once  established,  could  not  in  the 
nature  of  things  have  long  endured,  since  in  con 
ceding  the  right  of  any  State  to  secede  at  will  the 
Constitution  of  the  Confederacy  made  express  pro 
vision  for  its  own  dissolution.  A  little  while,  and 
its  members,  urged  by  some  special  interest  or  sin 
ister  ambition,  would  have  receded  from  the  alli 
ance  ;  and  then  one  after  another  have  fallen  a  prey 
to  foreign  aggression  or  domestic  anarchy.  More 
over,  the  process  of  disintegration  would  not  have 


ESSAYS  AND  ADDRESSES  75 

ceased  with  the  exit  of  the  South  nor  have  been 
limited  to  the  confines  of  the  Confederacy;  but  the 
example  of  successful  dismemberment,  communi 
cating  its  contagion  to  the  remaining  States,  and 
the  principle  of  cohesion  lost  from  the  Union,  North 
America  would  have  exhibited  that  dissolving  view 
of  crumbling  governments  and  chaotic  societies 
which  in  other  quarters  of  the  New  World  so  dis 
heartens  the  friends  of  freedom  and  civilization. 

Nor  to  the  restoration  of  the  Union  is  the  Con 
federate  soldier  any  the  less  reconciled  by  the  de 
struction  of  slavery.  True,  the  material  interests 
of  the  South  were  essentially  implicated  in  the  main 
tenance  of  the  system;  but,  philosophically,  it  was 
the  occasion,  not  the  cause  of  secession.  For  the 
cause  of  secession  you  must  look  beyond  the  incident 
of  the  anti-slavery  agitation  to  that  irrepressible 
conflict  between  the  principles  of  State  sovereignty 
and  Federal  supremacy  which,  menacing  the  Union 
in  its  conception  as  the  twin  children  of  the  patri 
arch  wrestled  for  the  mastery  in  their  mother's 
womb,  again  endangered  its  existence  in  1798  on 
occasion  of  the  Alien  and  Sedition  laws ;  and  again 
in  1819,  on  occasion  of  the  admission  of  Missouri; 
and  still  again  in  1833,  on  occasion  of  the  protective 
tariff ;  and  which,  arrested  by  no  concession  and  ac 
commodated  by  no  compromise,  continued  to  rage 
with  increasing  fury  until,  provoking  the  revolt  of 
the  South,  it  terminated  finally  in  the  absolute  and 
resistless  ascendency  of  the  national  power. 

In   1 86 1   the  people  of  the  South  resented  the 


76  ESSAYS  AND  ADDRESSES 

intervention  of  the  Federal  Government  to  restrict 
the  extension  of  slavery;  but  it  was  the  principle 
not  the  object,  of  the  interference  that  encountered 
their  opposition;  and  any  other  usurpation  of  Fed 
eral  power  on  the  sovereign  rights  of  the  States 
would  equally  have  challenged  their  resistance. 
Nor,  suffer  me  to  say,  was  slavery  any  more  the 
point  of  your  attack  than  of  our  defense ;  for  other 
wise,  in  beginning  the  war  the  Federal  Government 
would  not  have  been  so  scrupulous  to  proclaim 
through  all  its  organs  its  purpose  not  to  touch  any 
the  least  of  the  securities  of  slave  property. 

No,  people  of  the  North,  impartial  history  will 
record  that  slavery  fell  not  by  any  effort  of  man's 
will,  but  by  the  immediate  intervention  and  act  of 
the  Almighty  himself;  and  in  the  anthem  of  praise 
ascending  to  Heaven  for  the  emancipation  of  four 
million  human  beings,  the  voice  of  the  Confederate 
soldier  mingles  its  note  of  devout  gratulation.  The 
Divinity  that  presided  over  the  destinies  of  the  Re 
public  at  its  nativity  graciously  endowed  it  with 
every  element  of  stability  save  one;  and  now  that  in 
the  exuberance  of  its  bounty  the  same  propitious 
Providence  is  pleased  to  replace  the  weakness  of 
slavery  by  the  unconquerable  strength  of  freedom, 
we  may  fondly  hope  that  the  existence  of  our 
blessed  Union  is  limited  only  by  the  mortality  that 
measures  the  duration  of  all  human  institutions, 

But  why  argue  on  speculative  grounds,  to  prove 
the  patriotism  of  the  Confederate  soldier, —  since 
within  these  few  months  he  has,  by  so  memorable 


ESSAYS  AND  ADDRESSES  77 

an  illustration,  vindicated  his  fidelity  to  the  Union? 
You  cannot  have  forgotten  —  for  the  land  still 
trembles  with  the  agitations  of  the  crisis  —  that 
when  of  late  a  disputed  succession  to  the  Presidency 
appalled  the  country  with  the  imminence  of  civil 
war;  when  business  stood  still  and  men  held  their 
breath  in  apprehension  of  a  calamity  of  which  the 
very  shadow  sufficed  to  eclipse  all  the  joy  of  the 
nation ! —  you  cannot  but  remember  how,  obdurate 
to  the  entreaties  of  party  and  impenetrable  to  the 
promptings  of  resentment,  and  responsive  only  to 
the  inspirations  of  patriotism,  the  Confederate  sol 
dier  in  Congress  spoke  peace  to  the  affrighted  land. 
Your  difficulty  was  his  opportunity;  he  had  only  to 
say  the  word  and  the  fatal  fourth  of  March  would 
have  passed  without  the  choice  of  a  Federal  execu 
tive,  and  the  Union  have  been  involved  in  the  agon 
ies  of  a  dynastic  struggle.  But  with  a  sublime  mag 
nanimity  he  spurned  the  proffered  revenge  —  and 
yet  do  you  say  the  Confederate  soldier  is  false  to 
his  allegiance? 

Pardon  me  if  even  in  this  presence  I  make  bold  to 
protest  that  he  was  never  faithless  to  his  trust;  to 
declare  that  when  you  thought  him  treacherous  to 
the  Union  he  was  only  true  to  his  State ;  and  to  tell 
you  that  when  he  braved  all  the  wrath  of  your  ma 
jestic  power,  it  was  only  in  heroic  fidelity  to  a  weak, 
but  with  him  an  all-commanding  cause.  If  your 
reproach  be  just,  and  the  Confederate  soldier  were 
a  conscious  culprit,  then  indeed  is  reconciliation  a 
folly  and  a  crime;  for,  if  false  to  you  once,  he  may 


;8  ESSAYS  AND  ADDRESSES 

betray  you  again;  and  instead  of  alluring  him  to 
your  embrace  by  these  overtures  of  fraternity,  you 
should  repel  him  from  your  presence  as  a  perfidious 
outcast.  No,  patriots  of  the  Union!  the  Confed 
erate  soldier  offers  not  to  your  confidence  a  con 
science  stained  with  the  guilt  of  recreancy.  Veter 
ans  of  the  Union!  he  comes  not  into  your  compan 
ionship  with  confession  of  criminality;  but  for  the 
credentials  of  his  loyalty  to  the  Union  he  proudly 
adduces  the  constancy  with  which  he  clung  to  the 
fortunes  of  his  ill-starred  Confederacy. 

And  so,  fellow-citizens,  by  the  reciprocation  of  es 
teem  and  the  kindly  offices  of  mutual  confidence,  the 
soldiers  of  the  late  war  are  brought  to-day  to  frater 
nize  over  the  graves  of  their  departed  comrades, 
and  to  renew  with  ceremonies  of  impressive  solem 
nity  their  vows  of  fealty  to  the  Constitution  and  the 
Union.  While  on  the  one  side  the  soldier  of  the 
North  engages  to  keep  watch  over  the  rights  of  the 
State,  and  to  see  that  its  liberties  be  not  profaned 
by  military  usurpation,  nor  its  sovereignty  dispar 
aged  by  Federal  intervention,  the  Confederate  sol 
dier  on  his  part  pledges  himself  to  repel  every  ap 
proach  of  danger  to  the  Union.  Of  this  alliance 
so  propitious  to  the  peace  and  stability  of  the  na 
tion,  no  ill-omened  reminiscence  shall  interpose  to 
imperil  the  integrity;  but  whatsoever  of  common 
glory  may  be  gathered  from  the  annals  of  the  Re 
public  shall  be  culled  out  and  collected  into  an  in 
dissoluble  bond  of  brotherhood.  The  memory  of 
Washington  and  Montgomery,  Greene  and  Putnam, 


ESSAYS  AND  ADDRESSES  79 

of  Jefferson  and  Hamilton,  of  Jackson  and  Mc- 
Donough ;  the  shades  of  the  nameless  heroes  of  the 
Revolution,  whose  un forgotten  graves  were  not 
passed  without  honor  in  the  processions  of  this 
day,2 —  all,  all  shall  be  invoked  to  still  the  clamor  of 
sectional  jealousies.  Nay,  even  the  incidents  of  our 
unhappy  conflict,  gaining  as  they  recede  from  view 
the  halo  of  historic  illustration,  shall  lose  their  irri 
tating  and  repulsive  aspect ;  and  the  victories  of  the 
war  shall  be  recounted  with  equal  and  impartial  ex 
ultation  whether  they  signalize  Federal  or  Confed 
erate  valor.  And  hereafter,  should  the  menace  of 
foreign  aggression  summon  us  to  marshal  the 
heroes  of  the  past  for  present  encouragement  and 
emulation,  the  images  of  Grant  and  Lee,  of  "  Stone 
wall  "  and  Sherman,  shall  speak  a  sufficient  assur 
ance  at  home  and  admonition  abroad,  that  for  the 
most  puissant  power  on  earth  the  conquest  of  Amer 
ica  is  an  impossible  achievement.  Thus,  even  in 
the  tomb  the  Federal  and  the  Confederate  soldier 
shall  prove  the  friends  of  peace ;  and  their  blended 
memories  serve  as  a  safeguard  of  the  Union. 

2  The  American  soldiers  who  fell  in  the  battle  of  Long 
Island  were  buried  at  Fort  Greene;  and  part  of  the  perform 
ances  of  the  day  was  the  decoration  of  their  graves. 


IV 
THE  GENERAL  GRANT  ANNIVERSARY 


IV 
THE  GENERAL  GRANT  ANNIVERSARY 

[Speech  on  the  occasion  of  the  banquet  to  celebrate  the 
seventy-first  anniversary  of  the  birth  of  General  U.  S.  Grant, 
at  The  Waldorf,  Thursday,  April  27,  1893.] 

GENERAL  HORACE  PORTER  presented  Judge  Roger 
A.  Pryor,  with  the  following  introduction. 

GENTLEMEN  —  We  have  another  distinguished 
general  here  to-night,  who  fought  with  us  in  the 
war,  but  not  on  the  same  side.  It  has  been  said 
that  it  is  astounding  how  you  like  a  man  after  you 
fight  him.  That  is  the  reason  we  have  him  here  to 
night  —  to  give  him  a  warm  reception. 

He  always  gave  us  a  warm  reception.  He  used 
to  take  us  and  provide  for  us,  and  was  willing  to 
keep  us  out  of  harm's  way  while  hostilities  lasted 
—  unless  sooner  exchanged.  He  was  always  in  the 
front,  and  his  further  appearance  in  the  front  to 
night  is  a  reflection  upon  the  accuracy  of  our  mark- 
manship.  Not  knowing  how  to  punish  him  there, 
we  brought  him  up  to  New  York  and  sentenced 
him  to  fourteen  years  of  hard  labor  on  the  bench. 
Gentlemen,  I  introduce  to  you  General  Roger  A. 
Pryor. 

In   reply   Judge   Pryor   said:     MR.    CHAIRMAN 
83 


84  ESSAYS  AND  ADDRESSES 

AND  GENTLEMEN  —  It  was  the  sword  of  Grant 
that  smote  the  Confederacy  to  its  fall ;  and  yet  I,  a 
Confederate  soldier,  am  pleased  in  the  privilege  af 
forded  me  by  your  invitation  of  testifying  my  ap 
preciation  of  his  greatness. 

By  the  accordant  voices  of  all  men  in  all  ages 
martial  achievement  constitutes  a  pre-eminent  title 
to  renown ;  and  it  is  not  for  me  to  gainsay  the  glory 
of  him  whose  skill  baffled  the  strategy  of  Johnston 
and  prevailed  over  the  genius  of  my  own  illustrious 
commander. 

From  Donelson  to  Vicksburg  the  campaign  of 
General  Grant  in  the  West  was  an  unchequered 
career  of  conquest.  In  the  East  he  effaced  from 
your  flag  the  blemish  of  a  three  years'  ineffectual 
effort,  and  carried  it  in  triumph  to  the  catastrophe 
at  Appomattox.  Commencing  his  career  at  the  be 
ginning  of  the  war  on  a  level  with  the  million  men 
you  sent  to  the  field,  with  no  power  to  push  his 
fortunes,  with  no  augury  of  success  attaching  to 
his  name,  with  a  modesty  that  veiled  his  worth  and 
hindered  his  advancement,  nevertheless,  at  the  end 
of  the  arduous  struggle  he  emerged,  by  merit  alone, 
pre-eminent  over  all  rivalry  and  the  unchallenged 
chieftain  of  the  armies  of  the  North.  That  he 
achieved  what  all  others  had  failed  to  accomplish, 
that,  confronted  by  a  foe  of  unsurpassed  courage 
and  constancy,  and  opposed  by  leaders  with  an  ability 
for  war  unequal  only  to  the  attainment  of  the  im 
possible,  he  yet  overcame  all  obstacles  and  van 
quished  every  antagonist,  is  enough  to  associate 


ESSAYS  AND  ADDRESSES  85 

him  with  the  Caesars  and  Napoleons  in  the  Pantheon 
of  Immortals. 

But  even  more  worthy  of  homage  than  his  mili 
tary  exploits  is  the  magnanimity  with  which,  in  the 
hour  of  triumph,  he  disdained  the  trophies  of  vic 
tory,  and  the  clemency  with  which,  in  the  fury  of 
battle,  he  proffered  a  helping  hand  to  his  fallen  foe. 

There  are  those  who,  conceding  the  distinction 
of  Grant  as  a  soldier,  affect  to  deplore  his  miscar 
riage  as  a  statesman.  But  when  I  recall  the  prob 
lems  that  confronted  him  as  President  —  the  re 
pairing  of  ravages  of  war  —  bellum  plus  —  quam 
civile;  the  repressing  the  spirit  of  revolt  smothered, 
but  not  subdued;  the  ameliorating  the  evils  of  the 
social  and  civil  convulsion  in  the  South  consequent 
on  the  emancipation  of  five  million  negro  slaves 
and  their  incorporation  into  the  system  of  American 
citizenship;  recollecting,  too,  the  critical  altercations 
with  foreign  powers  inherited  by  his  administration 
remembering  these  tremendous  troubles,  and  consid 
ering  that  nevertheless  he  safely  piloted  the  Republic 
through  all  its  perils,  and  delivered  it  to  his  suc 
cessor  unfettered  in  freedom,  undiminished  in 
strength,  and  undimmed  in  luster,  I  do  not  hesitate 
to  avow  the  conviction  that  Grant  was  as  great  in 
peace  as  in  war. 

Laying  aside,  however,  all  his  other  titles  to  re 
nown,  this  remains  unquestioned  and  unquestion 
able  —  that  this  strong  arm  upheld  the  Union  in  the 
instant  of  imminent  overthrow,  and  assured  it  an 
endless  duration  of  grandeur  and  glory;  and  I,  a 


86  ESSAYS  AND  ADDRESSES 

Confederate  soldier,  proclaim  that  by  the  preserva 
tion  of  the  Union  Grant  rendered  to  the  cause  of 
liberty  and  civilization  as  transcendent  a  service  as 
any  recorded  in  the  annals  of  human  achievement. 

And  so,  by  the  majestic  simplicity  of  his  char 
acter  ;  by  his  constancy  in  adversity  and  his  modera 
tion  in  prosperity;  by  his  genius  alike  in  peace  and 
in  war;  by  the  splendor  of  his  deeds  in  the  merid 
ian  of  life,  and  by  his  sublime  fortitude  in  the  ag 
onies  of  death,  Ulysses  Grant  presents  a  figure  in 
history  before  which  the  coming  ages  will  bow  in 
reverential  admiration. 


THE  RECIPROCAL  OBLIGATIONS  OF  THE 
BENCH  AND  THE  BAR 


THE  RECIPROCAL  OBLIGATIONS  OF  THE 
BENCH  AND  THE  BAR 

[The  following  address  was  delivered  at  the  annual  dinner 
of  the  alumni  of  the  University  Law  School  on  April  18,  1895, 
in  response  to  the  toast,  "  The  Bench."] 

MR.  CHAIRMAN  AND  GENTLEMEN: 

The  topic  naturally  suggested  by  the  toast  you 
offer  is  the  reciprocal  obligations  of  the  Bench  and 
the  Bar.  The  duty  of  counsel  is  by  careful  re 
search  and  discussion  so  to  present  the  case,  on  each 
side,  as  to  enable  the  Court  to  render  a  right  de 
cision.  In  the  performance  of  this  function  great 
scope  is  afforded  for  the  display  of  learning  and 
ability.  The  learning,  however,  should  not  be 
abused  by  an  ostentatious  prodigality  of  citation, 
but  be  seen  only  in  the  production  of  authorities 
pertinent  and  conclusive  of  the  point.  Bulk  is  not 
always  weight;  and  the  attraction  of  a  brief  may 
be  in  an  inverse  ratio  to  its  length.  And  the  ability 
exhibited  should  be  manifest  in  an  orderly  marshal 
ling  of  essential  facts,  in  a  firm  grasp  of  the  prin 
ciples  involved,  in  an  accurate  apprehension  of  the 
conflicting  analogies,  and  in  an  argument  clear,  com 
pact,  and  cogent.  Forensic  eloquence,  though  not 
of  the  kind  formerly  in  vogue  —  florid,  copious,  and 

89 


90  ESSAYS  AND  ADDRESSES 

declamatory  —  is  still  a  power,  but  simple,  subdued 
and  severely  logical  —  pure  reason  aglow  with  an 
imation. 

The  first  and  indispensable  requisite  is  to  engage 
the  attention  of  the  Court ;  and  by  no  means  is  this 
condition  so  effectually  fulfilled  as  by  luminous 
statement,  elegance  of  diction,  methodical  arrange 
ment  of  topics,  and  earnestness  of  address.  I  say 
elegance  of  diction,  because,  after  all,  there  is  a  fas 
cination  and  an  effect  in  mere  felicity  of  phrase ;  and 
I  inculcate  earnestness  of  manner,  because  the  Hor- 
atian  precept,  "  Si  vis  me  Here,"  is  as  imperative  as 
ever. 

Having  so  presented  his  client's  case,  the  advo 
cate's  office  is  at  an  end,  and  the  judge  occupies  the 
scene  with  his  imposing  presence.  The  duty  of  the 
Bench  to  the  Bar  is  primarily  a  patient  attention  to 
the  arguments.  "  Patience  and  gravity  of  hear 
ing,"  says  Bacon,  "  is  an  essential  part  of  justice, 
and  an  overspeaking  judge  is  no  well-tuned  cym 
bal."  However  able  the  judge,  and  however  inex 
perienced  the  lawyer,  it  stands  to  reason  that  he 
who  has  made  a  special  study  of  the  case  must 
know  it  better  than  he  to  whom  it  is  just  presented, 
and  that  so  something  may  be  learned  even  from 
the  speech  of  the  least  expert  advocate.  Hence 
another  maxim  of  the  same  great  authority,  namely : 
"  Let  not  the  judge  meet  the  cause  halfway,  nor 
give  occasion  to  the  party  to  say  his  counsel  or 
proofs  were  not  heard."  Again,  the  advocate  is 
entitled  to  the  most  respectful  treatment  by  the 


ESSAYS  AND  ADDRESSES  91 

Court.  The  amenities  of  the  gentleman  are  noit  in 
compatible  with  the  dignity  of  the  judge.  And  this 
courtesy  of  the  Bench  to  the  Bar  should  not  be  pro 
portioned  to  the  eminence  of  the  advocate;  on  the 
contrary,  the  younger,  the  weaker,  and  the  ob 
scurer  the  counsel  the  clearer  his  title  to  deferen 
tial  encouragement  from  the  Court.  It  may  be 
more  perilous  to  provoke  a  duel  of  wit  and  disputa 
tion  with  a  Choate  than  with  a  tyro,  but  for  that 
very  reason  the  judge  should  be  prompter  to  chal 
lenge  Mr.  Choate  than  the  tyro.  How  crushing  to 
modest  merit  a  sneer  or  a  frown  from  the  Court, 
and  how  cruel,  too !  How  helpful  a  word  of  praise 
or  a  look  of  approval! 

The  briefs  handed  in,  the  judge  should  study 
them  thoroughly  and  impartially,  so  that  when  he 
delivers  his  decision  the  defeated  counsel  will  say 
that  at  all  events  the  Court  has  tried  to  do  justice. 
It  is  not  for  mortals  never  to  err,  and  everything 
will  be  forgiven  to  the  judge  who  has  sought  dili 
gently  and  conscientiously  to  discover  the  right. 
Whether  he  go  wrong  from  corruption  or  indo 
lence,  the  miscarriage  of  justice  is  the  same,  and 
equally  oppressive  to  the  suitor. 

But  while  gravely  meditating  the  case,  the  judge 
need  not  prolong  his  deliberation  to  an  Eldonian 
period  of  gestation.  Curia  advisari  vult  should  not 
be  the  synonym  of  interminable  procrastination.  In 
Magna  Charta  the  sale  of  justice,  the  denial  of  jus 
tice,  and  the  delay  of  justice  appear  in  the  same 
category  of  unpardonable  offenses.  Indeed,  gentle- 


92  ESSAYS  AND  ADDRESSES 

men,  the  judicial  office  is  not  of  dignity  only,  but 
of  awful  responsibility.  The  dispensing  of  justice, 
the  righting  of  wrong,  the  protection  of  innocence, 
the  punishment  of  guilt  —  these  are  its  functions; 
and  what  prudence,  what  labor,  what  vigilance, 
what  learning,  what  courage,  what  probity,  are  in 
dispensable  to  their  faithful  fulfillment!  Be  as 
sured  that  the  Bench  has  its  trials  and  perplexities, 
and  is  not  exempt  even  from  the  remorse  of  an  un 
just  decision,  though  the  effect  merely  of  human 
fallibility.  Bear  with  us,  then,  I  pray  you,  if,  under 
the  strain  of  our  arduous,  anxious,  and  distracting 
duties,  we  sometimes  lapse  into  error  and  occasion 
ally  give  vent  to  ebullitions  O'f  ill-humor.  Over  the 
infirmities  of  the  upright  judge  charity  will  cast  its 
veil ;  and  the  worth  of  the  magistrate  may  atone  for 
the  weakness  of  the  man. 

Gentlemen  of  the  Bar,  the  Bench  greets  you  as 
brothers.  It  is  only  while  the  ermine  is  on  that  we 
assert  the  superiority  of  position.  Descending  from 
our  official  station,  we  stand  on  a  level  with  the  most 
recent  of  Dr.  Abbott's  graduates,  and  we  solicit 
from  them  the  familiarities  of  an  equal  friendship. 
Meanwhile,  we  invoke  for  you,  one  and  all,  the  ut 
most  fortune  of  the  profession.  Dat  Galenus  opes, 
dat  Justitianus  honores;  wealth  is  not  the  reward  of 
the  lawyer,  but  by  noble  endeavor  he  may  attain  a 
better  prize  —  a  name  of  renown  and  an  influence 
for  good. 


VI 

THE  BAR  AND  FORENSIC  ORATORY 


VI 
THE  BAR  AND  FORENSIC  ORATORY 

[Address  to  the  graduating  class  of  the  Albany  Law  School] 

MR.  PRESIDENT,  AND  GENTLEMEN  OF  THE  GRAD 
UATING  CLASS  :  .* 

THE  invitation  with  which  you  have  honored  me 
imposes  an  obligation  which  I  know  not  how  other 
wise  so  effectually  to  discharge  as  by  communicating 
to  you  the  results  of  my  observation  of  the  means 
by  which  success  at  the  bar  is  most  surely  achieved. 

You  pause  to-day  at  a  critical  stage  of  your  pro 
fessional  career,  when  abandoned  by  the  guidance 
of  the  wise  and  faithful  preceptors  who  have  con 
ducted  you  hitherto,  you  are  left  to  your  own  re 
sources  and  to  the  direction  of  your  own  judgment, 
in  the  pursuit  of  the  prize  so  eagerly  coveted  and  yet 
so  difficult  of  attainment. 

What  if  one  who  himself  has  run  the  race  and 
has  missed  the  goal;  who,  mindful  of  the  infirmi 
ties  and  limitations  that  hindered  his  efforts,  and 
yet  observant  of  the  arts  by  which  more  skillful 
competitors  have  grasped  the  reward;  what  if  he 
should  generalize  his  experience  in  lessons  of  prac 
tical  utility  to  the  adventurous  but  untried  advo 
cate  —  would  you  not  accept  the  hand  so  extended 
to  you,  as  of  more  help  than  any  declamation,  how- 

95 


96  ESSAYS  AND  ADDRESSES 

ever  eloquent,  upon  any  theme  however  fraught 
with  interest  and  excitement? 

I  will  not  affect  to  disguise  from  you  the  labors 
and  difficulties  that  beset  the  path  upon  which  you 
are  about  to  enter. 

"  The  immortal  garland  is  not  to  be  run  for  with 
out  dust  and  heat,"  and  the  victory  you  are  to 
achieve  will  be  the  crown  and  recompense  of  in 
finite  toil;  of  obstacles  overcome;  of  high  faculties 
exerted  to  the  utmost  effect ;  of  many  a  miscarriage 
and  much  humiliation;  of  the  solicitations  of  pleas 
ure  spurned  for  nobler  but  less  attractive  objects  of 
desire;  of  a  life  consecrated  in  all  its  energies  to  the 
single  aim  of  eminence  and  distinction  in  your 
chosen  profession.  But  to  the  aspiring  and  reso 
lute  spirit  the  frown  of  difficulty  and  danger  is  but 
a  challenge  to  increase  of  exertion,  and  the  trumpet 
call  of  ambition  of  more  potency  than  all  the  beck 
oning  blandishments  of  indolence  and  ease. 

To  sustain,  then,  the  efforts  and  privations  ex 
acted  as  the  condition  of  success  at  the  bar,  you 
must  be  animated  by  an  enthusiasm  for  your  pro 
fession  — •  an  enthusiasm  born  not  merely  of  a  pas 
sion  for  its  distinctions,  but  nourished  as  well  by 
an  eager  and  insatiate  delight  in  the  study  of  the 
law.  An  avidity  for  the  prizes  of  the  profession  is 
undoubtedly  a  powerful  impulse  in  its  pursuit,  but 
the  more  constant  as  well  as  the  nobler  motive  is  a 
love  for  the  profession  itself.  If  you  have  em 
braced  the  law  with  the  ardor  of  a  genuine  affec 
tion;  if  you  be  truly  enamored  of  her  austere  arud 


ESSAYS  AND  ADDRESSES  97 

rugged  beauties ;  if  you  be  resolved  to  woo  her  with 
the  assiduity  of  a  heartfelt  devotion:  be  assured 
that  you  will  win  her,  and  that  she  will  repay  your 
fidelity  by  a  revelation  of  charms  which  she  dis 
covers  only  to  her  unselfish  suitors,  and  by  a  frui 
tion  of  reward  which  no  other  profession  so  pro 
fusely  lavishes  upon  its  votaries.  "If  you  love  me 
you  will  find  me  out,"  was  the  animating  assurance 
of  the  fair  doctor  of  Padua ;  and  Tully  tells  us  that 
"  without  a  passionate  inclination  and  an  ardor  like 
that  of  love,  no  man  ever  achieved  anything  great, 
especially  distinction  as  an  advocate."  Enthusiasm, 
I  repeat  with  emphasis  —  enthusiasm  in  the  study 
of  your  profession  is  the  first  and  fundamental  con 
dition  of  success  in  its  pursuit. 

Enthusiasm,  however,  is  but  an  incitement  and 
support  under  the  labors  requisite  for  the  attain 
ment  of  the  prizes  of  the  profession. 

It  is  possible  by  sheer  force  of  audacity,  and  the 
trick  of  a  ready  wit  and  the  persuasions  of  a  facile 
and  fluent  oratory,  to  masquerade  awhile  as  a 
lawyer,  and  attract  to  one's  self  a  profitable  clien 
tele;  but  without  solid  and  extensive  learning  in  the 
profession  one  cannot  achieve  a  real  and  enduring 
eminence  at  the  bar,  nor  long  impose  a  fictitious 
reputation  upon  the  public.  For  soon  the  preten 
sions  of  the  charlatan  will  be  exploded  by  his  mis 
leading  advice  and  the  miscarriage  of  his  causes; 
and  his  deceived  and  ruined  clients  will  apply,  per 
haps  too  late,  to  some  competent  lawyer  for  the 
reparation  of  their  fortunes. 


98  ESSAYS  AND  ADDRESSES 

How,  then,  are  you  to  acquire  this  indispensable 
knowledge  of  your  profession?  Not  otherwise,  be 
persuaded,  than  by  your  faculties.  It  was  the  idle 
vaunt  of  an  advocate  of  antiquity,  as  distinguished 
by  vanity  as  by  eloquence,  that  he  could  master  the 
civil  law  in  three  days;  but  the  conceit  even  of  Ci 
cero  would  have  been  abashed  in  the  presence  of  the 
immense  mass  of  jurisprudence  extant  in  the  age  of 
Justinian. 

With  the  progressive  development  of  civilization 
society  becomes  more  complex,  and  the  relations 
and  transactions  of  life  indefinitely  multiply;  and 
as  over  every  relation  and  transaction  of  life  a 
principle  of  law  presides,  we  need  not  marvel  at  the 
compass  and  intricacy  of  jurisprudence  at  this  ad 
vanced  age  and  in  this  enlightened  country.  The 
short  and  simple  code  which  sufficed  the  necessi 
ties  of  our  rude  forefathers  in  the  parent  country 
is  expanded  to  the  bulk  of  the  immense  and  elabor 
ate  system  with  which  you  are  to  grapple.  But 
indeed  no  finite  intelligence  can  comprehend  com 
pletely  the  infinite  volume  and  complexity  of  the 
law  in  this  our  day  —  nor,  happily,  is  so  impossible 
an  attainment  exacted  of  you.  In  practice  you  will 
—  indeed  you  must — 'address  and  restrict  your 
selves  to  some  special  departments  of  jurisprudence, 
and  while  with  the  learning  of  these  you  will  fa 
miliarly  acquaint  yourselves,  of  other  outlying  prov 
inces  you  will  be  content  to  know  the  general  scope 
and  characteristic  features. 

But  to  whatever  branch  of  the  profession  you 


ESSAYS  AND  ADDRESSES  99 

confine  your  practice,  you  must  be  conversant  with 
the  law  of  evidence  and  procedure,  for  the  rules 
of  evidence  and  procedure  are  prevalent  over  the 
entire  field  of  jurisprudence.  Limited,  however, 
as  your  researches  will  be,  you  cannot  become  pro 
ficient  in  any  department  of  the  law  except  on  the 
condition  of  diligent,  devoted,  conscientious  study; 
and  given  an  equivalency  of  intellectual  endowment, 
the  success  of  competitors  for  forensic  distinction 
will  be  in  the  proportion  of  their  respective  attain 
ments  in  legal  learning. 

Obviously,  then,  it  is  of  supreme  moment  to  the 
aspirant  for  forensic  eminence  that  he  pursue  that 
method  of  study  which  shall  yield  him  the  largest 
results  in  useful  and  abiding  acquisitions. 

I  assume  that  your  diploma  authenticates  your 
acquaintance  with  the  principles  of  jurisprudence; 
and  yet  throughout  your  professional  career  you 
will  need  to  have  habitual  recourse  to  the  works  of 
the  master  authors.  For  perusal  of  such  systematic 
treatises  not  only  refreshes  the  memory,  but  is  of 
especial  utility  in  improving  the  style,  in  training 
the  faculties,  and  in  methodizing  your  learning. 
But  for  these  results  it  is  necessary  that  you  be 
conversant  with  books  of  real  merit  only,  lest  by 
familiarity  with  inferior  writers  your  learning  be 
vitiated  by  error,  your  taste  corrupted,  and  your 
habit  of  thought  degenerate  into  a  loose  and  desul 
tory  succession  of  unconnected  propositions.  I 
could  name  authors  —  of  no  mean  pretensions  too 
—  whose  works  are  so  destitute  of  every  literary 


ioo          ESSAYS  AND  ADDRESSES 

excellence,  and  of  every  logical  process,  that  the 
only  safeguard  against  their  evil  influence  upon  the 
mental  discipline  is  in  their  dullness,  which  repels 
perusal.  On  the  other  hand,  the  literature  of  the 
law  abounds  in  models  and  masterpieces  of  rhe 
torical  art,  of  correct  reasoning,  and  of  scientific 
method  —  works  which  at  once  inform  the  under 
standing,  delight  the  literary  sensibilties,  and  de 
velop  the  faculty  of  argument.  To  the  too-frequent 
selection  of  works  of  the  former  class  as  text-books 
in  our  schools  I  impute  much  of  the  repugnance  to 
the  study  of  the  law  evinced  even  by  men  of  su 
perior  abilities;  and  I  cannot  but  believe  that,  if  the 
student  were  introduced  to  the  profession  under  the 
auspices  of  the  great  masters,  the  fascinations  of 
their  genius  would  impel  him  to  its  pursuit  with  in 
terest  and  avidity. 

It  is,  however,  to  the  Reports  that  the  practicing 
lawyer  will  have  the  most  frequent  and  familiar  re 
course  — '  mainly,  no  doubt,  because  there  only  can 
be  found  an  authoritative  exposition  of  the  rule  of 
law  that  is  to  furnish  the  solution  of  the  case  in 
hand,  but  also  because  of  the  value  of  the  study  of 
Reports  in  the  scheme  of  professional  training.  I 
know  not  a  more  profitable  or  more  pleasing  intel 
lectual  exercise  than  is  afforded  by  the  reading  of 
cases  in  our  best  Reports.  In  the  first  place,  the 
statement  of  the  case  in  an  instructive  lesson  upon 
that  most  important  and  at  the  same  time  most  diffi 
cult  feat  of  forensic  oratory  —  opus  oratorium 
maxime;  I  mean  a  lucid  presentation  of  the  facts 


ESSAYS  AND  ADDRESSES  101 

upon  which  hinges  the  event  of  the  litigation. 
Here  we  find  omitted  no  single  circumstance  which 
bears  upon  the  point  in  controversy;  and  no  single 
circumstance  introduced  which,  being  irrelevant  to 
that  point,  confuses  the  mind  and,  possibly,  diverts 
it  from  the  issue  in  agitation.  Then,  too,  the  es 
sential  facts  are  developed  in  due  sequence  and  de 
pendency,  so  as  to  conduct  to  the  legal  conclusion 
as  by  the  force  of  an  irrefragable  syllogism. 

From  the  darkness  and  confusion  of  chaos  to 
educe  light  and  order  is  the  achievement  of  omnipo 
tence  ;  and,  in  like  manner,  from  a  mass  of  compli 
cated  and  discordant  circumstances  to  cull  out  and 
collect  the  essential  elements  into  a  symmetrical 
and  complete  body  of  fact,  luminous  as  the  orb  of 
day,  is  the  highest  exploit  of  the  human  intelligence, 
as  illustrated  by  a  Mansfield  and  a  Marshall.  With 
out  a  perfect  apprehension  of  the  circumstances  of 
a  case, —  analogous  to  the  diagnosis  of  the  physi 
cian, —  it  is  impossible  to  subject  it  to  scientific 
classification,  and  to  know  by  what  principle  of  law 
it  is  governed ;  and  hence  the  ability  to  master  and 
to  marshal  facts  is  the  most  useful  and  not  the  least 
admirable  art  in  the  equipment  of  the  lawyer.  Now 
by  no  means  can  this  indispensable  faculty  be 
so  effectually  disciplined  and  developed  as  by  study 
of  the  statements  of  competent  reporters.  The 
syllabus  of  such  a  reporter  is  in  itself  replete  with 
interest  and  instruction  —  as  an  exposition  in  the 
shortest  and  clearest  compass  of  the  principles  which 
legal  reason  evolves  from  the  circumstances  of 


102  ESSAYS  AND  ADDRESSES 

the  case.  But  it  is  as  an  auxiliary  in  the  culture  of 
the  logical  faculty  that  the  Report  is  of  especial 
utility  to  the  student,  in  so  much  that  the  great 
master  of  dialectics  recommended  Smith's  Leading 
Cases  as  the  best  lesson  in  the  processes  of  ratiocin 
ation.  The  subtle  analysis,  the  compact  force,  the 
delicate  perception  of  analogy,  the  comprehensive 
grasp,  and  the  elegant  diction  exhibited  in  the  opin 
ions  of  a  Folger  and  a  Rapallo  —  I  speak  of  the  de 
parted  only  —  incessantly  meditated  and  anxiously 
emulated,  can  not  but  communicate  to  the  student 
somewhat  of  the  same  superlative  power  of  legal 
argumentation^  and  somewhat  of  the  same  felicity 
of  expression  and  illustration. 

It  is,  then,  by  reading,  by  the  study  of  books,  and 
not  otherwise,  that  the  lawyer  can  so  equip  him 
self  for  his  profession  as  to  secure  the  reward  after 
which  he  aspires. 

But  how  shall  he  read  ?  Is  there  an  art  of  study 
by  which  the  largest  fund  of  information  can  be 
acquired  with  a  minimum  expenditure  of  labor? 
Obviously  the  same  amount  of  mental  power  ex 
erted  during  the  same  period,  even  by  the  same  in 
dividual,  does  not  always  yield  equal  results.  And 
the  disparity  is  still  more  apparent  between  the  ac 
quisitions  of  different  persons,  though  of  equivalent 
capacities.  It  follows,  therefore,  that  there  are 
conditions  propitious  and  unpropitious  to  fruitful 
study.  Accordingly,  from  Quintilian  to  the  present 
day  teachers  have  been  formulating  precepts  for  the 
conduct  of  the  understanding  in  the  acquisition  of 


ESSAYS  AND  ADDRESSES  103 

knowledge.  The  one-book  maxim,  multum  legere, 
non  multa, —  little  reading  and  much  reflection, — 
was  zealously  inculcated  by  Hobbes  and  Locke,  while 
on  the  other  hand  other  instructors  of  equal  eminence 
and  authority  have,  both  by  doctrine  and  example,  il 
lustrated  the  advantages  of  omnivorous  reading. 
My  own  observation  is  that,  while  the  helluo  libro- 
rum  may  be  a  prodigy  of  erudition,  his  capacity  of 
reception  is  developed  at  the  expense  of  his  active 
powers,  and  that  he  is  not  apt  to  be  expert  and  ef 
ficient  in  the  use  of  his  materials.  Obviously,  as  a 
thorough  mastery  of  a  few  books  in  each  depart 
ment  of  the  law  implies  not  only  readier  but  ampler 
acquisitions  of  learning  than  can  be  accumulated 
by  a  discursive  expatiation  over  a  multitude  of  vol 
umes,  he  who  perfectly  knows  Kent's  Commen 
taries,  for  example,  has  in  his  head  more  law  than 
is  at  the  instant  command  of  any  man  in  the  pro 
fession;  and  then  his  learning,  instead  of  being  an 
undigested  mass,  is  so  classified  and  distributed  in 
the  memory,  and  is  so  incorporated  into  his  mental 
constitution,  as  to  be  always  available  for  use  and 
application. 

But  by  what  method  may  the  student  best  fix  and 
fasten  in  his  mind  the  matter  of  the  volumes  he 
reads?  One  great  authority,  Dr.  Johnson,  advises 
trusting  to  memory  alone, —  arguing  that  a  memor 
andum  only  transfers  the  impression  to  paper,  and 
so  discharges  the  mind  from  the  obligation  of  recol 
lection, — i  while  Professor  Bain  inculcates  the  utility 
of  abstracts  and  annotations  for  the  acquisition  of 


104          ESSAYS  AND  ADDRESSES 

a  clear  and  firm  conception  of  the  contents  of  the 
book.  These  two  processes,  you  will  remember, 
were  combined  in  the  education  of  the  prince  of 
orators,  who,  by  transcribing  Thucydides  eight 
times,  not  only  held  the  entire  work  verbatim  in  his 
mind,  but  absorbed  and  assimilated  every  particle 
of  intellectual  nourishment  to  be  derived  from  that 
rich  storehouse  of  eloquence  and  philosophy. 

For  a  plan  of  study  my  own  experience  suggests 
that  one  subject  at  the  time  be  grappled  and  mas 
tered,  and  that  to  this  end  you  read  the  best  author 
by  whom  the  topic  is  treated,  in  connection  with  the 
principal  cases  by  which  it  is  illustrated  and  ap 
plied;  and  that  then  you  reproduce  from  memory 
a  synopsis  or  summary  of  your  acquisitions.  By 
this  procedure  you  will  at  once  concentrate  your 
faculties,  systematize  your  learning  and  imprint  it 
indelibly  upon  the  mind. 

And  as  to  the  method  of  reading,  I  would  incul 
cate  that  you  pause  upon  a  sentence  until  you  com 
pletely  apprehend,  its  meaning,  and  upon  every  argu 
ment  until  you  clearly  perceive  its  processes;  for 
not  to  understand  is  not  to  learn;  and,  besides,  an 
habitual  acquiescence  in  dim  and  vague  conceptions 
inevitably  darkens  and  debilitates  the  intellect. 
Hence  I  would  earnestly  admonish  you  of  the  fu 
tility  and  evil  of  excessive  study,  since  when  the 
mind  is  fatigued  it  grasps  nothing  firmly  and  ten 
aciously;  and  the  habit  of  listlessly  wandering  over 
the  pages  of  a  book  is  fatal  to  all  intensity  of  appli 
cation  and  capacity  of  acquisition.  Only  when  the 


ESSAYS  AND  ADDRESSES  105 

attention  is  awake  and  the  faculties  fresh  and  alert 
can  you  read  with  effect,  and  to  read  without  result 
is  at  once  a  waste  of  time  and  a  depravation  of  the 
intellect.  The  moment  you  perceive  that  the  mind 
refuses  to  take  hold;  the  moment  that  the  spur  is 
necessary  to  stimulate  its  flagging  energies;  the 
moment  you  feel  a  vacillation  and  vagrancy  of  at 
tention, —  that  instant  lay  aside  your  book,  and 
for  refreshment  betake  yourself  to  that  best  of  re 
storatives,  the  delights  of  literature.  For  repose 
is  not  always  recreation;  and  when  the  reason  is 
weary  it  is  best  recuperated  by  the  play  of  the  facul 
ties  of  taste  and  imagination. 

And  yet,  after  all,  it  is  a  distressing  reflection  to 
the  .student  how  little  he  remembers  of  what  he 
reads.  It  is  the  remark  of  a  celebrated  author  — 
himself  a  man  of  uncommon  erudition  —  that  "  he 
who  remembers  most,  remembers  little  compared 
with  what  he  forgets  " ;  but  he  adds  the  encouraging 
admonition  —  "  Do  not  resign  all  hopes  of  improve 
ment  because  you  do  not  retain  what  even  the 
author  himself  has  perhaps  forgotten."  So  import 
ant  a  faculty  is  memory,  that  Quintilian  esteemed 
it  the  equivalent  of  genius, —  tantum  ingenii  quan 
tum  menwria, —  and  to  the  lawyer  it  is  perhaps  the 
most  indispensable  of  mental  powers. 

Many  expedients  are  employed  to  fix  the  results 
of  reading  in  the  mind ;  but,  after  all,  "  the  true  art 
of  memory  is  the  art  of  attention."  What  we  have 
read  with  interest  we  remember  —  and  we  remem 
ber  it  because  its  interest  engaged  our  attention. 


io6          ESSAYS  AND  ADDRESSES 

The  vivid  and  enduring  recollections  of  childhood 
and  the  forgetfulness  of  old  age  are  equally  pro 
verbial,  but  the  boy  remembers  because  the  inter 
esting  novelties  of  the  world  absorb  his  attention, 
and  the  octogenarian  forgets  because  he  has  ceased 
to  observe  with  interest  the,  to  him,  familiar  and 
fading  incidents  of  life.  If,  therefore,  you  con 
centrate  your  attention  upon  the  book  in  hand,  and 
afterward  revolve  its  contents  in  frequent  medita 
tion,  you  will  retain  them  without  the  aid  of  any 
artifice  of  mnemonics. 

In  that  invaluable  guide  to  the  student, —  Locke's 
tractate  On  the  Conduct  of  the  Understanding, —  it 
is  written  that  "  reading  furnishes  the  mind  with 
the  materials  of  knowledge,  but  it  is  thinking  that 
makes  what  we  read  our  own " ;  to  which  add 
Bacon's  injunction  of  frequent  conference  on  the 
subject  of  our  reading,  and  you  have  the  precepts 
of  the  best  teachers  on  the  art  of  study. 

Be  assured  that  a  system  of  study  conducted  on 
these  principles  and  pursued  with  diligence  will  soon 
sufficiently  accomplish  you  in  the  learning  of  the 
profession. 

Equipped  now  with  competent  learning  in  the 
profession,  you  come  to  apply  your  knowledge  in 
the  conduct  of  causes.  B;ut  here  precepts  are  of 
slight  utility  for  your  guidance,  since  skill  in  the 
trial  of  causes  is  not  to  be  taught  by  art,  but  is  to 
be  acquired  only  by  experience.  The  dearth  of 
treatises  on  the  subject  attests  their  uselessness. 

It  is  a  curious  fact,  by  the  way,  that  the  best  rules 


ESSAYS  AND  ADDRESSES  107 

for  the  examination  of  witnesses  were  propounded 
nineteen  centuries  ago  by  the  author  of  the  Insti 
tutes  of  Oratory,  and  in  modern  times  by  a  learned 
prelate  of  the  Church  of  England  —  I  mean  Arch 
bishop  Whateley,  in  his  book  upon  rhetoric. 

It  is  obvious  to  remark  that,  before  engaging  in  a 
trial,  you  must  be  thoroughly  master  of  the  law  and 
the  facts  of  the  case;  that  you  know  in  advance 
what  your  own  witnesses  will  testify;  and,  if  pos 
sible,  anticipate  the  evidence  of  your  adversary; 
that  you  never  propound  a  question  without  a  def 
inite  and  predetermined  purpose;  that  upon  cross- 
examination  especially  you  ask  no  question  an  an 
swer  to  which  may  harm  more  than  it  can  help  you ; 
that  you  avoid  leading  an  adverse  witness  to  repeat 
his  testimony  in  chief,  for  most  certainly  he  will 
strengthen  it,  and  with  the  effect  of  a  recoil  of  your 
own  engine;  that  you  preserve  throughout  perfect 
self-possession  and  control  of  your  faculties;  that 
you  be  not  prematurely  elated  by  an  apparent  ad 
vantage,  nor  depressed  or  embarrassed  by  a  sudden 
discomfiture;  that  you  watch  the  vicissitudes  of  the 
trial  with  a  sleepless  vigilance;  that  you  keep  stead 
ily  and  constantly  in  view  the  object  of  your  exer 
tion,  namely,  the  success  of  your  cause;  that  to 
that  end  all  your  efforts  —  every  look,  every  action, 
every  word  —  be  directed ;  that  toward  witnesses, 
hostile  as  well  as  friendly,  you  be  uniformly  courte 
ous;  that  with  your  opponent  you  observe  all  the 
punctilios  of  chivalric  debate;  that  to  the  jury  you 
be  respectful  but  not  adulatory,  and  to  the  Court 


io8          ESSAYS  AND  ADDRESSES 

deferential  but  not  obsequious;  above  all,  that  you 
maintain  a  perfect  equability  of  temper,  for  when 
an  advocate  loses  his  temper  he  has  already  lost 
his  cause. 

The  constituent  elements  of  forensic  genius  are 
identical  with  those  of  the  military  —  "  untroubled 
perspicacity  in  confusion,  firm  decision,  rapid  execu 
tion,  providence  against  attack,  fertility  of  resource, 
and  stratagem." 

With  these  very  general  —  and  because  general, 
sterile, —  precepts  for  the  conduct  of  trials,  I  pass 
to  the  consideration  of  the  crown  and  consumma 
tion  of  professional  excellence  —  I  mean  forensic 
oratory. 

That  the  eloquence  of  the  bar  has  lost  its  ancient 
luster  is  the  mournful  refrain  of  the  landator  tcm- 
poris  acli.  Where  now,  he  cries,  are  the  Pinkneys 
and  Wirts,  the  Emmets  and  Hoffmans,  whose  ora 
tions,  enriched  by  the  spoils  of  literature  and  radiant 
with  the  colors  of  fancy,  and  glowing  with  the  fires 
of  passion,  and  resounding  in  the  accents  of  a  soul- 
stirring  declamation,  held  enraptured  audiences  as 
by  a  spell  of  enchantment?  And  because  of  these 
none  now  survives,  he  concludes  that  forensic  ora 
tory  has  declined  from  its  high  estate;  and  because 
such  eloquence  is  no  longer  extant,  he  infers  that 
eloquence  at  the  bar  is  no  more  in  request.  But 
the  inference  is  invalidated  by  the  assumption  of  the 
premise.  The  fact  is,  not  that  the  eloquence  of  the 
bar  has  deteriorated,  but  rather  that  it  has  under 
gone  a  modification.  When  men  were  more  under 


ESSAYS  AND  ADDRESSES  109 

the  dominion  of  emotion  and  imagination,  they 
were  affected  by  a  style  of  oratory  very  different 
from  that  which  prevails  with  a  mind  dominated 
by  reason  and  intent  upon  the  prosiac  realities  of 
every-day  business ;  but  it  is  still  true  that  eloquence 
is  the  art  of  persuasion,  and  that  persuasion  is  the 
specific  function  of  the  advocate. 

The  truth,  then,  is  not  that  eloquence  is  a  useless 
instrument  for  the  lawyer,  but  that  his  purposes  now 
require  a  different  species  of  oratory  from  that 
which  his  predecessor  found  of  such  prevalent 
power;  and  that,  instead  of  the  passionate  appeal 
and  tropical  luxuriance  of  a  former  day,  he  per 
ceives  that  sobriety  of  statement  and  severity  of 
logic  are  of  more  efficacy  for  conviction  and  in 
swaying  enlightened  and  disciplined  judgments  to 
his  ends. 

Nevertheless  these  are  precisely  the  character 
istics  of  the  loftiest  strain  of  forensic  eloquence  — 
for  where  else  are  displayed  so  close  a  grapple  of 
the  subject  of  discussion,  such  argumentative  force, 
such  austere  disdain  of  tinsel  embellishment,  such 
concise  simplicity  of  expression,  as  in  the  immortal 
oration  on  the  Crown?  And,  in  Erskine's  argu 
ment  in  support  of  the  Rights  of  Juries,  the  same 
quality  of  pure  intellectual  power,  the  same  contempt 
of  meretricious  ornament,  and  the  same  abstention 
from  declamatory  appeal,  are  conspicuous ;  and 
yet  this  address  to  the  Court  is  the  highest  effort  of 
forensic  oratory. 

Concede,  then,  that  there  is  no  longer  a  call  for 


no          ESSAYS  AND  ADDRESSES 

mere  flourishes  of  rhetoric;  still  in  the  contentions 
of  the  bar  at  the  present  day  there  is  ample  scope 
and  exigent  occasion  for  eloquence  in  the  truest 
sense  —  the  power  of  persuasion. 

The  ultimate  object  being  to  gain  your  cause, 
then,  whether  that  end  be  to  be  compassed  by  con 
viction  of  the  reason  or  by  influence  upon  the  feel 
ings,  it  is  an  indispensable  condition  of  success  that 
you  secure  and  retain  the  attention  of  the  tribunal 
addressed;  otherwise  the  most  powerful  argument 
and  the  most  moving  appeal  will  be  but  an  idle  ex 
penditure  of  breath.  Now,  nothing  so  effectually 
arrests  attention  as  a  visible  earnestness  of  manner, 
revealed  in  tone,  look  and  gesture  —  a  passion  for 
your  cause,  subdued  but  palpitating  in  every  organ 
of  expression.  A  frigid  indifference  in  the  speaker 
communicates  its  own  languor  to  the  hearers ;  but  his 
vivacity  inflames  them  with  a  responsive  animation. 
Mere  intensity  of  feeling,  however,  will  speedily 
fatigue  and  repel  attention  unless  it  be  retained  and 
rewarded  by  a  commensurate  excellence  in  the  form 
and  substance  of  the  discourse. 

A  lucid  and  logical  arrangement  of  topics  —  so 
perspicuous  as  instantly  to  reveal  their  own  signif 
icance  and  force ;  a  diction  choice  but  not  fastidious, 
rich  yet  not  redundant;  an  exhibition  of  learning 
short  of  pedantry,  but  sufficient  for  information; 
a  concatenation  of  argument,  compact  and  convinc 
ing;  and  an  elocution  graceful,  animated,  and  earn 
est  —  these  are  the  qualities  of  speech  by  the  concen 
trated  spell  of  which  even  the  most  austere  and  im- 


ESSAYS  AND  ADDRESSES  in 

patient  court  will  be  fascinated  into  an  involuntary 
thralldom. 

With  the  learning  requisite  for  the  material  of 
argument  your  professional  reading  will  supply  you ; 
logic  will  teach  you  the  art  of  sound  reasoning; 
moral  philosophy  will  unveil  to  you  the  mysteries 
of  the  human  heart  and  enable  you  to  touch  the 
springs  of  human  passion;  that  copious  and  elegant 
vocabulary  which  is  not  only  the  fit  and  felicitous 
vehicle  of  worthy  thought,  but  is  in  itself  a  beauty 
and  a  power,  you  will  acquire  by  habitual  converse 
with  the  classics  of  our  language;  the  wealth  and 
delicacy  of  fancy  from  which  even  a  forensic  dis 
putation  may  borrow  appropriate  embellishment 
and  interest,  aye,  and  efficacy  too, —  for  it  is  the 
feather  that  wings  the  arrow  to  the  mark, —  this 
exquisite  charm  of  oratory  will  be  imparted  to  you 
by  the  munificent  matters  of  romance  and  poesy. 

The  aim  of  oratory  being  immediate  impression 
upon  the  audience,  it  results  that  its  excellence  is 
to  be  measured  by  its  effect,  and  not  by  its  conform 
ity  to  the  canons  of  criticism.  The  composition 
may  be  brilliant  as  a  literary  performance  and  yet 
altogether  ineffectual  as  an  oral  address  —  it  may 
be  magnificent,  but  not  oratory.  Such  were  the 
splendid  disquisitions  of  Edmund  Burke  —  read 
even  now  with  infinite  admiration  of  their  deep 
philosophy,  their  gorgeous  imagery,  and  the  im 
perial  beauties  of  their  style,  but  heard  at  the  time 
only  by  the  few  to  whom  the  dinner  bell  did  not 
offer  more  persuasive  attractions.  Such,  too,  was 


ii2  ESSAYS  AND  ADDRESSES 

the  speech  of  Sir  James  Macintosh  in  defense  of 
Peltier,  which,  superb  as  an  essay  on  the  freedom  of 
the  press,  was  so  devoid  of  oratorical  effect  that  it 
failed  to  avert  the  conviction  of  a  client  in  whose 
favor  concurred  the  pride  of  patriotism  and  the 
indulgent  sympathies  of  the  jury. 

Obviously  a  composition  submitted  for  perusal  in 
the  seclusion  of  the  closet,  addressed  to  a  cool  and 
critical  judgment,  and  subject  to  the  recurrences  of 
revision  and  the  pauses  of  meditation,  exacts  a  per 
fection  of  structure  that  shall  satisfy  the  scruples 
of  a  prolonged  and  patient  scrutiny,  and  allows  of  a 
subtility  of  argumentation,  an  elliptical  brevity  of 
expression,  and  a  subdued  moderation  of  tone  and 
color  which  would  be  altogether  inappropriate  in 
spoken  discourse;  spoken  discourse,  of  which  the 
meaning  must  be  apprehended  in  the  instant  or  else 
be  lost  in  the  onward  rush  of  thought  and  feeling 
—  in  which  the  nicer  and  more  delicate  felicities  of 
style  either  escape  observation  or  provoke  reproof 
for  lack  of  harmony  with  the  serious  business  of 
the  occasion,  and  to  which  an  exaltation  of  passion 
is  communicated  by  the  contagious  sympathies  of 
the  audience. 

So  diverse  and  incompatible  indeed  are  the  re 
quisites  of  written  and  oral  composition,  that  Fox's 
test  of  a  speech  was,  Does  it  read  well?  for  if  it 
reads  well,  then  it  is  not  a  good  speech. 

And  here  permit  me  to  mention  a  circumstance 
which,  as  I  conceive,  largely  explains  the  decadence 
of  spoken  eloquence  at  the  present  day  —  I  mean  the 


ESSAYS  AND  ADDRESSES  113 

presence  of  the  stenographer.  It  is  to  him  rather 
than  to  the  audience  that  the  orator  addresses  him 
self;  and,  solicitous  about  the  critical  judgment  of 
the  newspaper  reader,  he  is  inattentive  to  the  condi 
tions  of  immediate  effect  upon  his  audience.  A 
gentleman  of  long  service  in  the  Federal  Senate 
tells  me  that  it  is  a  common  remark  that  the  debates 
in  secret  session  are  far  superior  to  those  in  public, 
and  the  cause  is  the  absence  of  the  reporter. 

The  characteristic  qualities  of  oral  eloquence,  es 
pecially  at  the  bar,  are  dictated  by  its  end  and  oc 
casion,  namely,  to  sweep  along  the  judgments  and 
the  feelings  toward  a  definite  conclusion ;  and  hence 
that  "  agonistical "  style,  as  the  father  of  philo 
sophical  criticism  distinguishes  it  —  negatively,  an 
abhorrence  of  the  ornate  and  the  glittering,  of  the 
pompous  and  the  florid,  of  brilliant  paradox,  of 
turgid  nonsense,  of  all  the  elaborate  artifices  of  rhe 
toric;  positively,  a  steady  and  swift  pursuit  of  the 
object  in  view,  impassioned  appeal,  indignant  excla 
mation,  defiant  interrogation,  argument  condensed 
into  self-evident  and  epigrammatic  propositions 
rather  than  drawn  out  into  a  chain  of  consecutive 
ratiocination,  amplification,  and  repetition  under 
varied  aspects  of  the  salient  points,  a  homely  and 
idiomatic  diction  —  all  quivering  with  the  vivacity 
and  animation  of  an  earnest  and  glowing  spirit  — 
these  are  the  qualities  of  speech  which  constitute 
true  and  effective  eloquence. 

Now,  how  are  these  excellencies  of  oratory  to  be 
acquired?  For  if  it  be  true  of  the  poet  that  he  is 


ii4          ESSAYS  AND  ADDRESSES 

such  by  the  inborn  prerogative  of  genius,  it  is  other 
wise  with  the  orator;  who,  whatever  his  native  en 
dowments,  must  still  be  disciplined  into  proficiency 
by  assiduous  culture;  and  who  on  the  other  hand, 
howsoever  embarrassed  and  impeded  by  original  in 
firmities,  may  yet,  like  Demosthenes,  attain  by  ar 
duous  endeavor  to  the  highest  perfection  of  elo 
quence.  Of  all  our  faculties,  probably  that  of  ef 
fective  public  speech  is  the  most  susceptible  of 
growth  and  development,  and  like  other  faculties, 
it  is  best  cultivated  by  use  and  imitation. 

It  was  by  speaking  at  least  once  every  night  dur 
ing  the  session  of  Parliament  that  the  greatest  of 
debaters  declared  that  he  acquired  his  unrivaled 
ability. 

If,  then,  you  would  become  an  orator,  be  per 
suaded  that  only  by  practice  in  public  speaking  can 
you  command  the  self-possession,  the  prompt  con 
ception,  the  fluency  and  felicity  of  expression  and 
the  grace  of  delivery  that  are  essential  to  the  char 
acter. 

Practice  alone,  however,  only  gives  freedom  and 
facility  to  the  operation  of  your  powers;  and  if  you 
would  augment  those  powers  and  wield  them  to  the 
utmost  effect,  you  must  enrich  and  invigorate  your 
selves  from  the  resources  of  the  great  masters  of 
oratory.  A  constant  contemplation  of  the  ideals 
of  eloquence  not  only  exalts  the  mind  to  a  kindred 
emulation,  but  insensibly  instructs  it  in  the  arts  of  an 
equal  achievement. 

So,  by  the  play  of  its  pinions  in  preparatory  ex- 


ESSAYS  AND  ADDRESSES  115 

cursions,  and  by  watching  the  mother  bird  in  her 
loftier  flights,  the  young  eagle  is  trained  and  em 
boldened  to  pierce  the  empyrean  and  soar  amid  the 
glories  of  the  highest  heaven. 

Happily  for  every  purpose  of  instruction  and 
emulation  our  literature  is  rich  in  all  the  models  of 
oratory.  In  forensic  eloquence  the  arguments  of 
Erskine,  in  Parliamentary  eloquence  the  speeches  of 
Macaulay,  in  pulpit  eloquence  the  sermons  of  Rob 
ert  Hall,  in  popular  eloquence  the  harangues  of 
O'Connell  —  exhibit  to  us  all  the  resources  of  ora 
tory  in  the  utmost  plenitude  of  genius. 

Nor  need  we  travel  abroad  for  examples  and  illus 
trations  of  forensic  oratory  in  its  highest  perfec 
tion;  for  in  the  sublime  passion  of  Patrick  Henry, 
in  the  gorgeous  vehemence  of  Choate,  in  the  brilliant 
and  abounding  fancy  of  Prentiss,  and  in  the  majes 
tic  simplicity  of  Webster,  we  find  at  home  every 
beauty  and  every  power  of  eloquence,  displayed  with 
an  effect  not  inferior  to  the  achievements  of  the 
mighty  masters  of  antiquity. 

But  whatever  the  intrinsic  beauty  and  power  of 
the  production,  it  is  still  an  inert  energy  until  oral 
utterance  gives  it  the  life  and  movement  of  an  actual 
force. 

The  characteristic  excellence  of  a  speech,  as  dis 
tinguished  from  a  written  composition,  consists  in 
the  delivery  —  and  assuredly  the  whole  effect  of  a 
speech  depends  upon  its  delivery.  Hence  the  em 
phasis  with  which,  by  practice  as  well  as  by  precept 
—  by  practice  in  the  untiring  endeavor  to  catch 


n6          ESSAYS  AND  ADDRESSES 

every  grace  of  elocution;  by  precept  in  inculcating 
action  as  the  first  and  the  second  and  the  third 
requisite  of  effective  eloquence  —  hence  the  empha 
sis  with  which  the  prince  of  orators  urged  the  im 
portance  of  delivery  in  the  art  of  eloquence.  And 
his  great  adversary  bore  equal  testimony  to  the 
effect  of  delivery,  when  to  the  Rhodians,  who  ap 
plauded  his  rehearsal  of  Demosthenes'  oration,  he 
exclaimed,  "  Could  you  have  heard  him  deliver  it !  " 

Of  the  efficacy  and  value  of  delivery — 'compre 
hending  tone,  look,  and  gesture  —  we  have  an  in 
teresting  example  in  the  preaching  of  Whitefield, 
whose  sermons,  though  intrinsically  of  little  or  no 
worth,  caught  from  the  magic  of  his  action  and  his 
voice  an  eloquence  that  thrilled  the  skeptical  Boling- 
broke,  that  extorted  applause  from  the  fastidious 
Hume,  and  that  wanned  even  the  cool  and  cautious 
Franklin  into  a  glow  of  involuntary  enthusiasm. 

Precepts,  I  fear,  are  of  little  avail  to  the  attain 
ment  of  excellence  in  delivery;  but  these  are  too 
obvious  to  escape  remark  —  distinctness  of  articu 
lation,  correctness  of  pronunciation,  due  modula 
tion  of  voice,  earnestness  of  manner,  and  a  vivid 
animation  of  action. 

By  all  means  hi  speaking  banish  every  thought  of 
self,  and  abandon  yourself  to  the  enthusiasm  of  the 
argument ;  for  though  you  may  be  thus  betrayed  into 
some  eccentricities  or  extravagances,  still  they  are 
your  own,  they  are  true  to  nature,  and  -tis  the  touch 
of  nature  that  kindles  the  sympathy  of  a  kindred 
emotion.  A  frigid  formality  of  delivery,  however 


ESSAYS  AND  ADDRESSES  117 

conformable  to  the  rules  of  art,  is  incompatible  with 
all  the  effects  of  eloquence.  Especially  abstain  from 
any  verbal  preparation  of  your  discourse;  for,  be 
sides  that,  if  you  have  the  thought  it  will  leap  into 
life  by  the  appropriate  expression  —  promsam  rem 
verba  sequenter.  The  least  appearance  of  utterance 
frorq  memory  is  fatal  to  the  spontaneity  in  which 
consists  all  the  enchanting  illusions  of  eloquence. 

Animated  by  a  generous  enthusiasm  for  the  law, 
expert  in  the  tactics  of  a  trial,  enriched  by  judicious 
study  with  the  learning  of  the  profession,  and  ac 
complished  by  appropriate  culture  in  the  art  of  elo 
quence,  you  will  win  the  renown  extolled  by  the 
great  master  as  the  consummate  distinction  of  the 
bar  — of  being  "  the  first  lawyer  among  orators  and 
the  first  orator  among  lawyers." 

Gentlemen,  the  calling  with  which  you  have 
chosen  to  link  the  destinies  of  your  life  is  indeed 
a  noble  vocation.  Charged  with  the  conservation 
of  the  highest  and  dearest  interests  of  humanity, 
— -the  property,  the  character,  the  happiness,  the 
liberty,  the  life  of  the  citizen, —  the  consciousness  of 
so  lofty  a  commission  cannot  but  impart  to  the  pro 
fession  a  commensurate  elevation  of  thought  and 
expansion  of  sympathies. 

Constrained  by  the  variety  of  problems  submit 
ted  for  its  solution  to  expatiate  over  the  whole  em 
pire  of  civilization,  it  is  dignified  and  adorned  by  all 
the  learning  within  the  reach  of  the  human  intelli 
gence. 

Its  end  and  aim  being  the  chastisement  of  wrong 


ii8          ESSAYS  AND  ADDRESSES 

and  the  vindication  of  right,  its  abstract  studies 
and  its  habitual  practice  alike  conduce  to  the  educa 
tion  of  the  moral  nature  in  conformity  with  the 
highest  and  purest  ideals  of  justice. 

The  scourge  of  triumphant  iniquity  and  the 
refuge  of  oppressed  innocence,  its  transcendent  func 
tions  require  an  ability  which  no  craft  can  baffle  and 
an  eloquence  which  no  heart  can  resist. 

To  be  worthy  of  association  in  so  noble  a  guild 
is  proof  sufficient  of  genius  and  virtue ;  and  so  to  be 
worthy,  I  doubt  not,  will  be  your  endeavor  through 
out  the  career  upon  the  commencement  of  which  I 
beg  to  bestow  my  heart- felt  benediction. 


VII 

INFLUENCE  OF  VIRGINIA  IN  THE  FORMA 
TION  OF  THE  FEDERAL  CONSTITUTION 


VII 

INFLUENCE  OF  VIRGINIA  IN  THE  FORMA 
TION  OF  THE  FEDERAL  CONSTITUTION 

[  The  address  before  the  Virginia  Bar  Association,  published 
by  the  Association,  is  inserted  in  this  collection  upon  the  sup 
position  that  the  reader  will  be  interested  in  the  evolution  of 
the  Federal  Constitution  as  framed  by  the  fathers  and  ex 
pounded  by  Marshall;  not,  as  it  is  now  become,  the  supreme 
autocracy  of  the  Executive,  usurping  the  functions  of  other 
departments  and  nullifying  the  essential  rights  of  the  States. 
Surely,  it  is  opportune  to  recall  the  fundamental  postulates, 
that  the  departments  of  Government  are  co-ordinate  and  inde 
pendent  ;  and  that  the  principle  of  our  political  system  is  "  In 
destructible  union  of  indestructible  States."] 

MR.  PRESIDENT  AND  GENTLEMEN  OF  THE  VIRGINIA 
STATE  BAR  ASSOCIATION 

ALTHOUGH  I  live  under  another  sky,  remote  from 
my  native  State,  my  heart,  unchanged,  is  still  true  to 
the  Commonwealth  of  Virginia.  Her  renown  1 
cherish  as  a  priceless  heritage,  and  any  derogation 
from  her  glory  I  feel  as  a  filial  bereavement. 

The  eminence  already  attained  by  the  American 
Republic  in  the  rank  of  ruling  Powers,  its  manifest 
destiny  of  illimitable  expansion  and  indefinite  dura 
tion,  and  the  coincidence  it  exhibits  of  public  order 
with  individual  freedom,  naturally  attracts  attention 
to  the  policy  of  which  the  effects  are  so*  prodigious 
and  beneficent.  Hence  the  interest,  everywhere 

121 


122  ESSAYS  AND  ADDRESSES 

apparent,  in  the  Constitution  of  the  Federal  Govern 
ment.  Political  philosophers  the  world  over  have 
subjected  it  to  the  keenest  criticism;  and  yet  it  chal 
lenges  unbounded  and  well-nigh  universal  applause. 
"  It  is  the  greatest  refinement  in  social  policy,"  de 
clares  Lord  Brougham,  "  to  which  any  state  of  cir 
cumstances  has  ever  given  rise,  or  to  which  any  age 
has  given  birth."  With  equal  enthusiasm  Mr.  Glad 
stone  pronounces  it  "  the  most  wonderful  work  ever 
struck  off  at  a  given  time  by  the  brain  and  purpose 
of  man."  And  Mr.  Bryce,  in  a  strain  of  less  fervid 
and  more  discriminating  admiration,  esteems  it 
"  above  every  other  written  constitution  for  the  in 
trinsic  excellence  of  its  scheme,  its  adaptation  to  the 
circumstances  of  the  people,  the  simplicity,  brevity, 
and  precision  of  its  language,  its  judicious  mixture 
of  definiteness  in  principle  with  elasticity  in  details." 

A  rivalry  of  pretension  to  the  authorship  of  a  sys 
tem  of  government  so  successful  and  so  celebrated 
was  inevitable,  as  time  effaced  the  traces  of  its 
origin.  Immediately  after  the  event,  indeed,  the 
credit  of  its  construction  was  awarded  to  Virginia 
by  common  consent;  but  latterly  indications  of  an 
effort  to  despoil  her  of  the  distinction  are  visible  in 
many  directions.  The  task  I  propose  to  myself,  in 
requital  of  your  kindness,  is  to  reassert  the  rightful 
claim  of  Virginia,  and  to  vindicate  it  by  the  unim 
peachable  evidence  of  history. 

The  genesis  of  the  supreme  law,  I  assume,  is  an 
interesting  subject  of  research  with  lawyers;  proof 
that  the  Federal  Constitution  is  essentially  the  off- 


ESSAYS  AND  ADDRESSES  123 

spring  of  Virginia  cannot  be  an  ungrateful  offering 
to  Virginians.  If  I  recount  incidents  familiar  to 
Virginians,  they  are  incidents  of  which  Virginians 
should  never  be  weary  in  the  recollection. 

For  a  time,  as  implied  by  Mr.  Gladstone,  the  no 
tion  prevailed  that  the  Federal  Constitution  was 
the  conception  and  achievement  of  the  convention 
of  1787;  but  now  the  accepted  and  the  more  scien 
tific  theory  is,  that  it  was  not  a  creation,  but  an  evo 
lution  —  the  normal  and  inevitable  outgrowth  of 
the  antecedent  political  conditions  of  the  country. 
Contemplated,  however,  in  either  aspect,  whether  as 
a  design  or  a  development,  the  influence  of  Virginia 
in  its  formation  is  equally  conspicuous  and  decisive. 
If  we  view  it  as  the  product  of  the  past,  it  embodies 
the  spirit,  the  ideas,  and  the  institutions  of  Virginia. 
If  we  take  it  as  a  contrivance  of  policy,  we  still  see 
it  formed  and  finished  by  the  hand  of  Virginia. 

The  colonists  of  Virginia  were  English,  and  they 
brought  with  them  from  their  ancestral  home  the 
political  instincts  and  traditions  of  that  masterful 
race.  In  1619,  a  year  before  the  Mayflower  skirted 
the  coast  of  Massachusetts,  the  Virginians  inaugur 
ated  representative  government  on  the  American 
continent,  "  and  this  example,"  says  Story,  "  of  a 
domestic  parliament  to  regulate  all  the  internal  con 
cerns  of  the  country  was  never  lost  sight  of,  but 
was  afterward  cherished  throughout  America  as  the 
dearest  birthright  of  freemen."  Insisting  upon  the 
privilege  of  self-government,  on  the  2ist  of  June, 
1621,  the  Virginians  extorted  the  concessions  that 


i24  ESSAYS  AND  ADDRESSES 

"  no  orders  of  court  shall  bind  the  said  colony  un 
less  they  be  ratified  by  the  General  Assemblies." 
They  asserted  the  right  of  self-taxation  and  con 
trol  of  the  public  purse,  protesting,  in  1624,  that 
"  the  Governor  shall  not  lay  any  imposition  upon 
the  colony,  their  lands  or  commodities,  otherwise 
than  by  the  authority  of  the  General  Assembly,  and 
employed  as  the  said  Assembly  shall  appoint." 
Though  loyal  to  the  King,  in  1635  they  "  thrust 
out "  his  governor  for  encroachment  upon  their 
rights,  and  substituted  successors  of  their  own 
choosing.  Nay,  after  the  downfall  of  monarchy 
they  confronted  Cromwell  himself,  and  only  yielded 
to  his  usurpation  upon  an  honorable  capitulation, 
acknowledging  their  submission  as  "  a  voluntary  act, 
not  forced  or  constrained  by  conquest,"  and  guaran 
teeing  them  "  such  freedom  and  privileges  as  be 
long  to  the  freeborn  people  of  England."  After 
the  Restoration  they  broke  out  in  open  rebellion 
against  the  oppressions  of  government,  and  antic 
ipated  by  a  century  the  final  and  victorious  strug 
gle  for  the  liberties  of  America.  On  the  untimely 
death  of  their  leader  —  the  well-born,  the  gallant, 
the  accomplished,  the  eloquent  Bacon  —  their  re 
volt  was  quenched  in  blood;  but,  even  so,  without 
any  surrender  of  their  chartered  rights. 

A  long  period  of  repose  ensued,  during  which 
Virginia  accumulated  wealth,  multiplied  in  popula 
tion,  reinforced  her  native  virtues  by  incorporating 
in  her  community  the  Scotch-Irish  Presbyterians 
and  the  German  Lutherans  of  the  Valley,  and  em- 


ESSAYS  AND  ADDRESSES  125 

bellished  her  material  form  with  the  social  graces 
and  the  refinements  of  learning.  And  yet  the  ener 
gies  of  her  nature  were  not  relaxed  by  the  luxuries 
of  an  epicurean  life;  but,  instead,  were  braced  and 
disciplined  in  combats  with  her  savage  neighbor  and 
conflicts  with  a  more  formidable  foe.  The  victory 
of  Point  Pleasant  and  the  defeat  on  the  Mononga- 
hela  attested  equally  her  readiness  for  the  imminent 
grapple  with  the  power  of  Great  Britain. 

So,  in  1765,  English  as  she  was  in  affection  and 
upon  principle,  by  her  resolutions  against  the  Stamp 
Act,  testifying  her  ancient  and  unalterable  attach 
ment  to  self-government,  she  sounded  to  her  sister 
States  the  signal  of  resistance  to  foreign  aggression. 
In  1773,  by  her  committee  of  correspondence,  she 
invited  them  to  union  in  the  common  cause ;  and  she 
insured  that  union  by  a  call  of  the  General  Congress. 
Her  leadership  in  the  great  movement  was  recog 
nized  by  the  appointment  of  Peyton  Randolph  to 
the  head  of  the  civil  and  George  Washington  to  the 
head  of  the  military  establishment.  On  the  I5th 
of  May,  1776,  she  instructed  her  delegates  in  the 
Congress  to  propose  a  definitive  renunciation  of  al 
legiance  to  the  British  Crown;  and,  accordingly, 
on  the  7th  of  June  Richard  Henry  Lee,  in  her  be 
half,  moved  the  resolution  that  "  the  united  Colon 
ies  are  and  ought  to  be  free  and  independent  States." 
The  resolution  passed,  Thomas  Jefferson  announced 
the  advent  of  the  new  nation  in  his  immortal  mani 
festo.  Meanwhile,  on  the  I5th  of  May,  1776,  Vir 
ginia  alone,  and  of  her  own  volition,  outrunning  the 


126          ESSAYS  AND  ADDRESSES 

initiative  of  Congress,  abjured  her  old  allegiance 
and  assumed  the  attitude  of  an  independent  State. 
On  the  1 2th  of  June  her  Declaration  of  Rights  and, 
on  the  29th,  her  plan  of  government  were  adopted 
—  the  first  instance  in  recorded  history  of  a  written 
constitution  for  a  free  and  independent  community 
enacted  by  the  sovereign  will  of  the  people. 

This  memorable  performance,  be  it  observed,  was 
not  anticipated  by  the  so-called  constitutions  of  New 
Hampshire  and  South  Carolina;  because,  first,  they 
did  not  purport  to  be  systems  of  government,  but 
merely  provisional  expedients,  a  sort  of  modus 
v'wendi  — "  to  continue,"  as  they  are  careful  to  pro 
test,  "  only  during  the  present  unhappy  and  unnat 
ural  contest  with  Great  Britain ;  "  and  because,  sec 
ondly,  as  organic  laws  they  were  essentially  defec 
tive  in  collecting  the  total  political  power  in  a  single 
legislative  body,  and  in  providing  no  security  for 
the  inalienable  rights  of  the  people. 

Far  different  was  the  constitution  of  Virginia. 
Avowedly  the  fundamental  law  of  a  free  and  sov 
ereign  State  reposing  ultimately  on  the  basis  of  the 
popular  suffrage;  with  a  single  executive,  a  bi-cam 
eral  legislature,  an  independent  judiciary,  and  a  Bill 
of  Rights  defining  and  safeguarding  the  immunities 
of  the  citizen,  it  presented  a  system  of  republican 
polity  perfect  in  principle  and  complete  in  detail  — 
the  grand  original  of  all  subsequent  State  constitu 
tions,  and  the  model,  as  will  be  seen,  to  which  the 
architects  of  the  Federal  government  had  recourse. 

In   order   to   an   adequate   appreciation   of   the 


ESSAYS  AND  ADDRESSES  127 

agency  of  Virginia  in  the  formation  of  the  Federal 
Constitution,  it  is  requisite  that  we  recall  two 
events  in  her  history  under  the  Articles  of  Confed 
eration. 

The  acceptance  of  those  Articles  was  hindered 
by  the  reluctance  of  the  recusant  States  to  be  over 
borne  by  the  preponderance  of  Virginia  resulting 
from  the  disproportionate  extent  of  her  territory, 
and  by  a  desire  to  partake  the  benefit  of  that  terri 
tory.  They  demanded,  as  the  condition  of  their 
accession  to  the  confederacy,  that  this  domain 
should  be  the  dowry  of  the  nation,  instead  of  the  in 
vidious  possession  of  a  single  State.  Now,  the 
right  of  Virginia  to  the  Northwestern  territory  was 
clear  and  incontestable,  because  held  by  the  two 
fold  title  of  charter  and  conquest.  Waiving  the 
claim  by  charter,  still  the  territory  was  the  acquisi 
tion  of  her  own  valor  and  genius;  and  this,  too, 
while  she  was  contributing  her  contingent  in  troops 
and  supplies  to  the  maintenance  of  the  common 
cause.  The  expedition  of  George  Rogers  Clark 
was  her  enterprise,  was  sustained  by  her  resources, 
and  was  conducted  to  a  successful  issue  without 
succor,  or  sympathy  even,  from  the  States  which  now 
coveted  an  equal  participation  in  the  advantages  of 
the  conquest.  In  her  grasp  on  the  conclusion  of 
peace,  it  was  assured  to  her  by  the  principle  of  the 
treaty  —  uti  possidetis.  It  was  a  region  not  only  of 
immense  expanse,  but  of  a  salutary  climate  and 
fabulous  fertility;  and  had  Virginia,  yielding  to  self 
ish  motive,  declined  to  contribute  it  to  the  Union, 


128          ESSAYS  AND  ADDRESSES 

her  scepter  would  have  had  an  empire  for  its  sup 
port.  But  such  illiberal  propensity  was  not  in  her 
nature;  instead,  rather  a  generous  disdain  of  per 
sonal  interest  in  competition  with  the  claims  of 
country  —  and  accordingly  this  princely  domain  she 
offered  an  oblation  on  the  alter  of  patriotism.  Thus 
did  she  sacrifice  to  the  common  weal  the  domain  out 
of  which  were  carved  the  States  of  Ohio,  Indiana, 
Illinois,  Michigan,  and  Wisconsin.  By  this  act  of 
unparalleled  magnanimity  Virginia  not  only  re 
moved  an  obstacle  to  the  completion  of  the  confed 
eracy,  but  supplied  an  imperious  motive  to  a  closer 
and  firmer  compact  between  the  States.  With  such 
a  wealth  of  empire  the  common  property  of  the 
States,  which  one  would  forfeit  its  portion  by  seces 
sion  from  the  partnership?  Indeed,  this  gift  by 
Virginia  was  a  mighty  cement  of  union.  And 
more,  in  order  to  an  effectual  rule  over  so  vast  a 
region,  a  larger  and  more  energetic  action  by  the 
general  government  was  necessary; — >to  which, 
again,  a  reformed  and  reinvigorated  constitution 
was  an  indispensable  condition. 

So  it  was  that  Virginia  held  together  the  States 
during  the  critical  period  of  the  confederation,  and 
by  the  application  of  an  urgent  interest  spurred  them 
on  to  a  more  intimate  connection. 

By  another  act  of  less  but  still  important  conse 
quence,  Virginia  contributed  to  the  aggrandizement 
of  the  Federal  power.  Under  the  guidance  of  Jay 
the  Eastern  States  signified  their  assent  to  the  oc 
clusion  of  the  Mississippi  River  by  the  Spanish  gov- 


ESSAYS  AND  ADDRESSES  129 

eminent.  This  highway  of  access  to  the  ocean 
closed  to  the  enterprise  of  the  great  Valley,  its  treas 
ures  were  locked  up  in  sterile  torpor ;  population  re 
pelled;  a  barrier  interposed  to  the  westward  expan 
sion  of  our  empire,  and  the  American  republic 
dwarfed  and  diminished  to  an  attenuated  thread  of 
States  along  the  Atlantic  seaboard.  But  Virginia, 
with  a  larger  patriotism,  and  a  more  prophetic  fore 
sight,  by  her  relentless  resistance  intercepted  the  ill- 
omened  policy  and  secured  eventually  to  the  nascent 
nation  a  continent  for  the  consummation  of  its  ulti 
mate  grandeur. 

Such  now  were  the  magnitude  and  variety  of  in 
terests  soliciting  the  guardianship  of  Federal  author 
ity,  that  a  stronger  government  became  an  instant 
and  imperative  necessity. 

The  Articles  of  Confederation  imported  nothing 
more  than  a  "  league  of  friendship  " ;  and  although 
not  an  altogether  inadequate  bond  of  union  under 
the  pressure  of  war,  their  insufficiency  on  the  return 
of  peace  was  a  disquieting  apprehension  with 
thoughtful  men.  While  the  public  spirit  was  aglow 
with  patriotic  fervor  and  the  exigencies  of  the 
common  cause  forbade  either  languor  or  discord 
ancy  in  the  exertions  of  the  associated  States, — 
with  all  the  resources  of  the  country  collected  in  the 
grasp  of  the  military  chieftain, —  even  a  league  of 
friendship  might  avail  for  the  purposes  of  an  ef 
ficient  administration.  That  peril  past,  that  spirit 
extinct,  and  that  energetic  command  relaxed,  each 
State  relapsed  into  a  distinct  community  intent 


130  ESSAYS  AND  ADDRESSES 

only  upon  its  own  interest  and  indifferent  to  the 
general  welfare. 

Immediately  on  the  close  of  the  war  the  futility 
of  the  existing  arrangement  was  disclosed,  to  the 
dismay  of  all  patriots.  Then  was  seen  the  utter  in- 
competency  of  the  confederation  to  the  ends  of 
government.  With  no  executive  and  no  judiciary; 
without  power  to  enforce  its  requisitions,  to  raise 
armies  or  collect  revenues,  to  fulfil  its  engagements 
at  home  or  abroad,  to  regulate  commerce  or  even 
to  maintain  its  own  dignity  against  rabble  outrage, 
—  it  fell  at  once  into  helpless  exhaustion  and  uni 
versal  contempt. 

Obvious  was  the  alternative  of  either  a  firmer 
union  and  a  stronger  government  on  the  one  hand 
or  on  the  other  anarchy  and  ruin.  The  event  was 
long  in  suspense;  but  ultimately  Virginia  inclined 
the  balance  to  the  side  of  safety,  by  a  peremptory 
demand  for  a  reformed  Constitution  and  an  invigor 
ated  government. 

The  devotion  of  her  magnificent  domain  to  the 
common  country,  as  already  shown,  supplied  a  mo 
tive  of  union  and  an  incentive  to  a  sounder  system. 
But,  coincidently,  Washington  imparted  another 
and  a  mighty  impulse  toward  a  regenerated  Consti 
tution.  Having  conducted  the  war  to  a  triumphant 
close,  and  having  exhibited  in  his  character  all  the 
virtue  and  all  the  wisdom  of  which  humanity  is 
capable,  his  reward  was  the  universal  esteem  and 
affection  of  his  countrymen,  and  an  irresistible  as 
cendancy  over  their  inclinations  and  opinions.  His 


ESSAYS  AND  ADDRESSES  131 

judgment  was  their  oracle;  his  will  their  law.  The 
French  minister  declared  that,  in  determining  the 
nation  to  a  stronger  system,  his  word  was  of  more 
weight  than  the  collective  influence  of  all  other 
authority.  Foreseeing  the  vanity  of  all  he  had  ac 
complished  and  the  relapse  of  the  country  under 
despotism  unless  the  Union  were  reorganized,  he 
exerted  himself  with  indefatigable  activity  to  incul 
cate  the  necessity  of  a  new  constitution.  This  ob 
ject  he  pursued  unremittingly,  by  personal  discourse 
and  private  correspondence ;  and  with  commensurate 
effect.  But  his  crowning  act  in  disposing  the  nation 
to  a  reform  of  the  Constitution  was  his  circular 
letter  to  the  governors  of  the  States  on  retiring 
from  the  command  of  the  army,  in  which,  with  im 
portunate  patriotism,  he  pressed  the  need  of  a 
stronger  government.  They  all  made  response  in 
the  spirit  of  Trumbull,  of  Connecticut,  who  extolled 
"  this  last  address  of  Washington  as  exhibiting  the 
fundamental  principles  of  an  indissoluble  union  of 
the  States  under  one  Federal  head."  Communi 
cated  to  the  several  legislatures,  the  appeal  fired  the 
heart  of  the  nation  to  a  passionate  clamor  for  a  new 
constitution. 

As  in  every  crisis  of  American  history  Virginia 
had  advanced  to  the  front,  so  now  she  again  took 
the  lead  in  the  march  toward  a  renovated  govern 
ment.  Simultaneously  with  her  cession  of  terri 
tory,  she  imparted  to  the  Congress  the  power  of  im 
post;  thus,  in  the  language  of  Mr.  Bancroft,  "  mar 
shaling  the  United  States  on  their  way  to  a  better 


132  ESSAYS  AND  ADDRESSES 

union."  Still  more  decisively,  Virginia  summoned 
the  Convention  to  recast  the  Constitution;  and  Vir 
ginia  first  commissioned  delegates  to  that  auspicious 
assembly. 

Thus,  on  a  review  of  the  successive  stages  in  the 
development  of  the  republican  system  in  America, 
we  observe  that  it  was  Virginia  who  set  the  ex 
ample  of  representative  government  and  colonial 
autonomy;  that  it  was  Virginia  who  gave  the  first 
signal  of  resistance  to  British  aggression;  that  it 
was  Virginia  who  initiated  union  in  the  common 
cause;  that  it  was  Virginia  who  first  adjured  al 
legiance  to  the  English  Crown  and  instituted  a  re 
publican  polity  by  the  act  of  her  sovereign  will; 
that  it  was  Virginia  who  first  proposed  to  the  sister 
colonies  a  Declaration  of  Independence;  that  the 
sword  of  one  son  made  good  what  the  pen  of  an 
other  had  proclaimed ;  that  for  the  sake,  even  of  an 
imperfect  federation,  she  surrendered  a  domain  of 
imperial  magnitude ;  that  she  opened  a  way  for  that 
career  of  progress  and  expansion  which  the  repub 
lic  has  since  so  gloriously  pursued ;  that  on  the  col 
lapse  of  the  confederacy  she  rescued  the  country 
from  chaos  by  summoning  the  States  to  the  recon 
struction  of  its  fundamental  law ;  in  short,  that  Vir 
ginia  stimulated  the  desire,  and  provided  the  means, 
and  prompted  the  effort,  and  furnished  the  ideal, 
for  the  Federal  Constitution  of  1787.  We  are  now 
to  see  her  in  the  act  of  making  it  —  moulding  its 
form  and  fashioning  its  features,  by  her  consum 
mate  statesmanship. 


ESSAYS  AND  ADDRESSES  133 

Forecasting  on  the  eve  of  the  convention  the 
probable  influence  of  Virginia  on  its  action,  her 
commanding  attitude  in  the  confederacy  was  a  sig 
nificant  factor.  In  deference  to  her  superior 
wealth,  her  greater  population,  her  historic  primacy 
among  the  States,  and  her  foremost  part  in  the 
achievement  of  independence,  the  initiative  and  as 
cendency  were  accorded  to  her  without  dissent. 
"  As  the  Convention  had  met,"  says  Hildreth,  "  on 
the  invitation  of  Virginia,  it  seemed  to  belong 
to  the  delegates  of  that  State  to  start  the  proceed 
ings." 

The  group  of  distinguished  men  at  the  moment 
eminent  in  her  councils  certified  her  fitness  for  the 
great  undertaking.  Washington,  Jefferson,  Madi 
son,  Mason,  Henry,  Marshall,  Monroe,  and  other 
names  of  hardly  inferior  note  formed  a  galaxy  of 
genius  that  would  have  lent  luster  to  any  age  and 
any  country. 

The  approved  abilities  and  ripe  experience  of 
the  men  whom  she  especially  commissioned  for  the 
work  gave  assurance  that  it  would  be  done  by  them 
and  be  well  done.  Washington,  in  whose  unerring 
wisdom  the  nation  reposed  its  surest  trust, — "  I 
know,"  wrote  Knox,  "  your  personal  influence  and 
character  is  the  last  stake  which  America  has  to 
play  " ;  Randolph,  delegate  in  the  Congress  of  the 
confederation,  and  successively  Attorney-General 
and  Governor  of  the  Commonwealth;  Blair,  long  a 
burgess  of  the  Colony,  member  of  the  convention  of 
1776  and  of  the  committee  which  reported  the  plan 


134          ESSAYS  AND  ADDRESSES 

of  State  government,  member  of  the  Court  of  Chan 
cery  and  Chief  Justice  of  the  General  Court ;  Wythe, 
strenuous  champion  of  independence  in  the  House 
of  Burgesses,  signer  of  the  Declaration  in  Congress, 
with  Jefferson  and  Pendleton  framer  of  the  re 
formed  legislation  for  the  State,  and  member  of 
the  Court  of  Chancery;  Madison,  also  member  of 
the  Convention  of  1776  and  of  the  Committee  to 
report  a  constitution  for  the  State,  member  of  the 
Legislature  and  of  Congress,  active  and  able  and 
eminent  in  every  station ;  Mason,  author  of  the  first 
constitution  for  an  independent  American  State, 
and  of  the  first  Bill  of  Rights  ever  formulated  for 
a  free  community;  ranking,  by  these  achievements, 
with  the  most  illustrious  law-givers  of  the  world :  — 
such  were  the  characters  who,  in  behalf  of  Virginia, 
assumed  the  task  of  reconstructing  the  Federal  gov 
ernment. 

The  problem  before  the  Convention  was  complex 
—  namely,  first  to  frame  a  system  of  polity  for  the 
nation  as  a  unit,  as  an  integral  personality;  and, 
secondly,  to  adjust  and  reconcile  the  Federal  suprem 
acy  with  the  sovereignty  of  the  States. 

The  primary  task  pertained  to  the  form  of  gov 
ernment  and  its  operation  upon  the  citizen;  and  as 
such  simply,  it  involved  no  novelty  of  invention  and 
no  difficulty  in  the  execution.  That  the  structure 
of  Federal  government  should  be  republican  was 
the  imperative  dictate  of  the  political  experience  of 
the  country.  It  was  against  the  oppression  of  mon 
archy  that  the  colonies  had  revolted,  and  republi- 


ESSAYS  AND  ADDRESSES  135 

can  institutions  were  already  prevalent  in  every 
State. 

For  the  particular  modification  of  the  republican 
principle  best  adapted  to  the  situation  of  the  States 
the  Convention  was  not  at  liberty  to  look  abroad; 
nor,  had  it  so  explored,  would  anything  have  been 
discovered  propitious  to  its  purpose.  During  its 
deliberations  the  Swiss  Confederacy  was  cited,  only 
to  be  condemned;  the  oligarchic  republic  of  Venice 
was  tottering  to  its  fall ;  and  the  Dutch  institutions 
wrere  signaled  as  a  ruin  to  be  avoided  rather  than  an 
example  for  imitation. 

In  origin,  therefore,  the  form  of  the  Federal  gov 
ernment  was  of  necessity  American;  and  its  model 
was  revealed  in  the  then  existing  institutions  of  the 
States  —  a  conclusion  to  which,  notwithstanding 
the  thesis  he  maintains,  Dr.  Ellis  Stevens  is  con 
strained  by  his  researches  into  the  sources  of  the 
Federal  Constitution.  "  After  all,"  he  admits, 
"  American  political  experience  was  the  principal 
factor  on  which  the  Philadelphia  Convention  relied 
in  its  constructive  task  " ;  and  "  the  convention  prac 
tically  took  the  model  of  colonial  government  as  it 
had  long  and  familiarly  existed,  and  as  adapted 
in  the  State  governments  then  freshly  set  up,  and 
applied  it  to  the  nation."  And  Dr.  Boregeaud  af 
firms  with  emphasis  that  "  the  institutions  of  the 
States  are  the  edifice  itself  of  which  the  Federal  Con 
stitution  is  but  the  completion." 

We  have  already  seen  that,  in  1619,  Virginia  fur 
nished  the  Colonies  with  the  exemplar  of  represen- 


136          ESSAYS  AND  ADDRESSES 

tative  government,  and  that  Virginia,  first  of  the 
States,  instituted  a  republican  system  on  the  founda 
tion  of  a  written  Constitution.  This  Constitution 
was  the  original  of  the  organic  acts  of  the  other 
States ;  and  it,  with  its  progeny,  was  now  before  the 
Convention  to  supersede  all  speculative  experiment 
by  a  model  of  wise  design  and  demonstrated  ef 
ficiency.  Its  authors  — -  Mason,  Madison,  and  Blair 
—  were  on  the  floor  of  the  Convention  to  commend 
it  for  adoption.  That,  in  fact,  it  presented  the  pat 
tern  after  which  the  Federal  Constitution  was 
framed  is  attested  by  their  substantial  identity  in 
the  essential  attributes  of  republican  polity  —  a 
single  executive,  a  legislature  of  two  chambers,  an 
independent  judiciary,  popular  representation,  and 
official  responsibility. 

While  the  form  of  representative  republican  gov 
ernment  adopted  by  the  Convention  is  but  a  duplicate 
of  the  system  established  by  Virginia  in  1776,  so 
much  of  the  Constitution  as  regulates  the  relations 
of  the  Union  to  the  States  is  an  absolutely  original 
conception. 

Of  alliances  offensive  and  defensive,  of  leagues 
of  friendship  such  as  the  Articles  of  Confederation, 
and  of  Federal,  associations  with  varying  degrees  of 
intimacy,  examples  were  not  wanting  either  in  an 
cient  or  modern  times.  But  here  is  a  system  at 
once  Federal  and  national;  its  constituents,  States 
as  well  as  individuals,  acting  coercively  within  the 
limits  of  the  several  sovereignties,  yet  so  acting 
without  restraint  upon  local  autonomy  or  abatement 


ESSAYS  AND  ADDRESSES  137 

of  its  own  efficiency,  and  without  peril  of  collision 
between  the  concurrent  forces.  The  expedient  by 
which  so  felicitous  and  so  marvelous  a  result  was 
attained  consists,  not,  as  commonly  taught,  in  a  par 
tition  of  powers  between  the  Federal  and  the  State 
governments, —  for  each  retains  its  faculties  in  all 
their  plenitude, —  but  in  the  distinction  of  objects  to 
which  those  powers  are  directed;  Federal  func 
tions  being  limited  to  purposes  of  national  policy, 
and  State  functions  restricted  to  the  ends  of  local 
economy;  and  in  an  effectual  provision  against  con 
flict  between  the  co-ordinate  jurisdictions  by  ac 
cording  precedence  and  supremacy  to  the  Federal 
authority. 

"  This  contrivance,"  says  Judge  Hare,  "  so  far  as 
my  knowledge  extends,  has  no  precedent  in  political 
history."  With  equal  emphasis  Professor  Fiske  ex 
claims  that  "  thus  at  length  was  realized  the  sublime 
conception  of  a  nation  in  which  every  citizen  lives 
under  two  complete  and  well-rounded  systems  of  law 
—  the  State  law  and  the  Federal  law,  each  with  its 
legislature,  its  executive,  and  its  judiciary,  moving 
one  within  the  other,  noiselessly  and  without  fric 
tion.  It  was  one  of  the  longest  reaches  of  con 
structive  statesmanship  ever  known  in  the  world." 

By  whose  genius  the  solution  of  the  hitherto  in 
soluble  problem  of  national  unity  with  local  self- 
government  was  achieved  authentic  history  demon 
strates  to  the  world.  In  advance  of  the  convention 
Madison  sketched  in  outline  a  project  of  Federal 
union,  which,  approved  by  his  colleagues,  was  pro- 


138          ESSAYS  AND  ADDRESSES 

pounded  as  the  plan  of  the  Virginia  delegation. 
Two  competing  plans,  the  one  of  New  Jersey  and 
the  other  of  Hamilton,  were  submitted;  but,  these 
cast  aside  with  slight  regard,  the  Convention  pro 
ceeded  to  construct  a  system  on  the  principles  of  the 
Virginia  programme.  After  four  months  of  ear 
nest  and  exhaustive  discussion  the  Virginia  scheme 
emerged  from  the  stormy  debate  altered  in  detail, 
but  identical  in  substance;  and,  so  modified,  was 
promulgated  by  the  Convention  for  acceptance  by 
the  States.  That  "  Madison  gave  the  outline  of  the 
plan  which  the  Convention  adopted,"  and  that  "  the 
fundamental  conception  of  our  partly  Federal, 
partly  National  government,  appears  throughout 
the  Virginia  plan  as  well  as  in  the  Constitution  which 
grew  out  of  it,"  are  the  explicit  concessions  of  Hare 
and  Fiske,  critics  from  whom  Virginia  may  not  ex 
pect  anything  of  exaggerated  commendation. 

Thus  did  Virginia,  acting  upon  the  initiative  al 
lowed  to  her  hegemony  in  the  confederation,  intro 
duce  to  the  Convention  the  true  theory  of  Federal 
government;  and  thus  is  the  Constitution  of  1787 
but  the  articulation  of  the  principles  she  pro 
pounded.  Nay,  more,  in  the  form  of  its  acceptance 
by  the  States, — 'that  is,  by  ratification  in  sovereign 
convention  of  the  people  as  proposed  by  Madison, — 
she  gave  it  a  sanction  and  a  stability  of  which  it 
would  have  been  destitute  had  a  mere  legislative 
approval,  as  suggested  by  Hamilton,  been  the  only 
basis  on  which  it  reposed. 

Nor  did  Virginia's  contributions  to  the  Federal 


ESSAYS  AND  ADDRESSES  139 

structure  cease  with  its  completion  by  the  Conven 
tion.  As  transmitted  to  Congress  for  submission 
to  the  people,  it  was  wanting  in  an  essential  safe 
guard  for  the  rights  of  the  citizen  and  the  State 
against  Federal  encroachment.  But  this  defect  was 
speedily  repaired,  and  repaired  from  resources  sup 
plied  by  Virginia. 

Together  with  her  acceptance  of  the  Constitution 
she  communicated  to  Congress  a  series  of  proposi 
tions  which  she  insisted  should  be  incorporated  with 
it,  as  guarantees  of  the  rights  of  the  States  and  the 
liberties  of  the  people.  Her  claim  of  protection  to 
the  States  was  conceded  in  the  Tenth  Amendment, 
providing  that  "  the  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited  by 
it  to  the  States,  are  reserved  to  the  States  respect 
ively,  or  to  the  people."  And  in  the  first  eight 
Amendments  we  find  that  each  and  every  specifica 
tion  of  popular  immunity  is  but  a  repetition  —  oc 
casionally  in  identical  terms  —  of  the  principles  em 
bodied  in  the  Bill  of  Rights  proposed  by  Virginia. 
True,  some  of  these  principles  other  States  had  sub 
mitted  as  a  necessary  part  of  the  fundamental  law; 
but,  then,  those  States  had  adopted  them  from 
George  Mason's  Bill  of  Rights  —  the  earliest  not 
only,  but  the  most  comprehensive  and  the  most  lum 
inous  formula  of  freedom  yet  extant  in  the  world. 
So  that,  if  not  directly  yet  derivatively,  the  original 
amendments  of  the  Constitution  are  distinctly  the 
contribution  of  Virginia. 

Thus  supplemented,  the  Federal  Constitution  af- 


140  ESSAYS  AND  ADDRESSES 

forded  in  potency  and  promise  a  sufficient  safe 
guard  to  all  the  great  interests  it  was  designed  to 
conserve  —  the  .supremacy  of  the  central  govern 
ment,  the  rights  of  the  States,,  and  the  inalienable 
liberties  of  the  people. 

It  still  remained,  however,  to  discover  and  de 
velop  the  principle  by  which  these  guarantees  upon 
paper  should  be  effectual  to  their  purpose ;  for  of 
what  avail  to  assert  Federal  supremacy  if  it  be  im 
pugned  by  the  action  of  the  States,  or  to  reserve 
State  rights  if  they  be  invaded  by  the  national 
authority,  or  to  declare  inviolable  the  immunities  of 
the  citizen  if  they  be  infringed  by  the  usurpation  of 
government?  Plainly  a  power,  in  some  quarter, 
to  restrict  the  several  departments  to  their  normal 
functions,  and  to  arrest  any  aberration  of  the  Fed 
eral  or  State  government  from  its  legitimate  orbit, 
was  indispensable  to  the  harmonious  and  beneficent 
operation  of  the  complicated  system.  Obviously, 
too,  the  only  method  by  which  this  necessary  result 
could  be  accomplished  was  by  nullifying  any  act, 
Federal  or  State,  which  should  contravene  the  pro 
visions  of  the  Constitution. 

But  to  what  organ  of  government  might  this  por 
tentous  power  be  safely  intrusted  ?  Not  to  the  Ex 
ecutive,  already  armed  with  more  than  regal  ener 
gies.  Not  to  the  Legislature,  which,  obedient  to 
popular  interest  and  popular  passion,  would  make 
the  mandate  of  its  constituency  the  measure  of 
legal  authority.  By  the  nature  of  its  functions  the 
Judicial  Department  alone  was  competent  to  the 


ESSAYS  AND  ADDRESSES  141 

delicate  and  difficult  task  of  expounding  the  sense 
of  the  Constitution,  and  adjudging  what  act,  Fed 
eral  or  State,  was  beyond  its  limitations.  Without 
purse  or  sword  —  depending  upon  the  Legislature 
for  the  means  of  its  subsistence,  and  upon  the  Ex 
ecutive  for  the  enforcement  of  its  decrees —  its  only 
power  was  moral ;  and  so  its  faculty  of  invalidating 
an  unconstitutional  act  is  fraught  with  no  menace  to 
the  institutions  or  the  liberties  of  the  country. 
Then,  too,  the  sanctity  which  in  the  American  mind 
hallows  the  judicial  office,  and  the  reverent  sub 
mission  with  which  the  American  people  bow  to  the 
adjudications  of  private  right, —  and  only  in  such 
adjudications  can  the  validity  of  a  law  be  deter 
mined, —  this  homage  rendered  to  the  judiciary  was 
an  all-sufficient  guaranty  that  its  judgment  discred 
iting  an  unauthorized  act  would  be  accepted  as  the 
imperative  voice  of  the  Constitution  itself. 

And  yet,  nowhere  in  the  Constitution  is  there  an 
explicit  concession  to  the  judiciary  of  power  to  in 
validate  an  act,  Federal  or  State,  because  repug 
nant  to  its  provisions.  Implicit  authority  so  to  ad 
judge  was  vehemently  denied  in  the  Convention,  and 
in  the  year  1800  was  challenged  from  the  Supreme 
Bench  by  Justice  Chase,  the  member  most  addicted 
to  a  latitudinarian  construction  of  the  Federal  com 
pact. 

To-day,  however,  the  jurisdiction  of  any  court, 
the  humblest  no  less  than  the  most  august,  to  pro 
nounce  an  apparent  law  no  law,  because  contrary  to 
the  Constitution,  is  a  familiar  and  fundamental 


142  ESSAYS  AND  ADDRESSES 

principle  of  American  jurisprudence.  And  it  is  the 
feature  of  our  political  system  that  is  peculiarly  the 
marvel  and  admiration  of  foreign  jurists  and  states 
men.  "  There  is  no  precedent  for  it,"  says  Sir 
Henry  Maine,  "  either  in  the  ancient  or  the  modern 
world."  De  Tocqueville  declares  that  "  the  power 
vested  in  the  American  courts,  of  pronouncing  a 
statute  to  be  unconstitutional,  forms  one  of  the 
strongest  barriers  which  has  ever  been  devised 
against  the  tyranny  of  political  assemblies."  And 
Dr.  Borgeaud  writes,  in  1894,  that  "  a  fundamental 
difference  separates  American  constitution  juris 
prudence  from  that  which  has  grown  up  in  Europe. 
While  in  Europe  the  act  by  which  the  legislative 
power  might  violate  an  article  of  the  Constitution 
can  only  give  rise  to  political  redress,  in  the  United 
States  the  judicial  power  may  decide  upon  the  con 
stitutionality  of  laws." 

While  recognizing  the  utility  of  the  institution, 
Bryne  and  Stevens  discredit  its  novelty,  affecting 
to  see  in  it  nothing  more  than  the  principle  upon 
which  English  courts  invalidate  a  by-law  of  a  civil 
corporation  because  ultra  vires,  and  in  its  applica 
tion  only  an  evolution  from  the  law  of  agency.  But 
where  is  the  analogy  between  a  judicial  interdict  of 
municipal  transgression  and  the  nullifying  by  the 
courts  of  the  act  of  an  independent  and  co-ordinate 
department  of  government?  An  ordinance  beyond 
the  scope  of  the  municipal  charter  is  void,  because 
outside  that  charter  there  is  no  municipality ;  a  law 
of  a  sovereign  State  or  of  Congress  approved  by 


ESSAYS  AND  ADDRESSES  143 

the  President  is  invalidated  by  judicial  sentence,  be 
cause  incompatible  with  the  fundamental  compact 
of  union.  In  England  an  act  of  Parliament  is  the 
supreme  law,  anything  in  Magna  Charta  or  the  Pe 
tition  of  Right  to  the  contrary  notwithstanding; 
and  the  validity  of  such  act  is  subject  to  no  test  but 
the  will  of  the  Parliament.  In  the  United  States 
an  act  of  Congress  or  of  a  Legislature,  though 
authenticated  by  all  the  formalities  of  regular  pro 
cedure,  is  still  to  be  in  harmony  with  the  organic 
law  of  the  government;  and  if  upon  judicial  inquiry 
it  be  found  repugnant  to  that  law,  no  matter  what 
its  apparent  authority,  its  nullity  is  a  necessary  con 
sequence. 

No,  gentlemen,  the  function  of  the  judiciary  to 
annul  an  act  of  legislation  for  repugnancy  to  the 
Constitution  is  an  American  invention,  and  is  due 
to  the  sagacity  of  the  statesmen  of  Virginia. 

After  expatiating  upon  the  wisdom  and  benefi 
cence  of  the  institution,  publicists  are  eager  in 
tracing  its  origin,  with  the  result  that  Rhode  Island 
is  distinguished  as  the  place,  and  the  year  1786  as 
the  epoch,  of  the  great  discovery  in  political  science. 
No  share  in  the  achievement  is  accorded  to  Vir 
ginia  by  any  commentator  on  the  American  Consti 
tution  — •  either  by  Story  or  Kent  or  Cooley.  And 
yet,  in  November,  1782, —  four  years  before  the 
Rhode  Island  case  of  Trevett  v.  Weedon  —  your 
own  Court  of  Appeals,  in  Commonwealth  v.  Caton, 
reported  4  Call,  page  5  —  by  a  solemn  judicial  deliv 
erance  asserted  the  power  of  the  courts.  These  are 


144  ESSAYS  AND  ADDRESSES 

the  words :  "  To  declare  any  act  of  the  Legislature 
to  be  unconstitutional  and  void  " ;  and  it  is  of  mo 
ment  to  remark  that  the  doctrine  was  then  vindi 
cated  by  the  argument  upon  which  to  this  day  it  re 
poses. 

Of  no  less  significance  are  the  facts  that  Chan 
cellor  Wythe,  by  whom  the  power  of  the  judiciary 
to  cancel  an  unconstitutional  enactment  was  first  of 
ficially  promulgated,  had  for  pupil  John  Marshall ; 
that  in  1788  John  Marshall  repeated  his  master's 
lesson  on  the  floor  of  the  State  Convention,  and  that 
in  1803,  as  Chief  Justice  of  the  United  States,  the 
same  John  Marshall,  sometime  law  student  with 
George  Wythe,  delivered  that  judgment  in  Marbury 
v.  Madison  by  which  the  principle  he  had  learned 
under  the  tuition  of  Virginia  was  consolidated  in  the 
jurisprudence  of  the  Union. 

In  the  face  of  the  authentic  records  of  history,  no 
candid  critic  will  dispute  the  initiative  of  Virginia 
in  the  development  of  the  most  original  and  the 
most  salutary  principle  in  the  American  system  of 
constitutional  government. 

But  otherwise  than  in  framing  the  Constitution 
of  1787,  and  in  afterward  calling  into  operation  the 
principle  upon  which  its  success  was  suspended,  the 
influence  of  Virginia  was  manifest  in  the  formation 
of  the  Constitution.  From  the  inevitable  gener 
ality  of  its  expressions,  and  its  reserve  in  enumera 
ting  but  not  defining  the  powers  communicated,  it 
was  open  to  a  diversity  of  construction;  and  upon 
this  alternative  of  interpretation  depended  its  ef- 


ESSAYS  AND  ADDRESSES  145 

ficiency  as  an  instrument  of  government.  In  the 
contemplation  of  a  commentator  inimical  to  its  es 
sential  object,  or  incapable  of  penetrating  beneath 
the  surface  of  its  text,  it  imparted  authority  of 
scarcely  greater  scope  and  vigor  than  was  grudged 
to  the  defunct  confederation.  In  the  contemplation 
of  a  commentator  sympathetic  with  its  aims  and 
competent  to  perceive  the  profound  implications 
latent  in  its  brief  but  pregnant  phraseology,  it  was 
instinct  with  the  energies  of  a  self-sustaining  and 
all-sufficient  system.  Of  symmetrical  form  and 
heroic  proportions,  oar  organic  law  awaited  the  il 
lumination  of  Marshall's  mind,  to  draw  from  it  the 
accents  of  transcendent  power.  He  found  the  Con 
stitution  inanimate  and  inarticulate;  he  gave  it  life 
and  light  and  a  voice  of  sovereign  command.  Cur 
tailed  of  his  auxiliary  expositions,  the  document  it 
self  were  a  futile  engine  of  Federal  action  and  a 
fragile  bond  of  Federal  union.  Hence,  the  not 
over-strained  statement  in  the  American  Common- 
ivealth,  that  the  Constitution  is  "  the  work  of  the 
judges,  and  most  of  all  of  one  man,  the  great  Chief - 
Justice  Marshall."  John  Marshall,  we  remember, 
was  a  son  of  Virginia ;  and  by  him  she  developed  the 
Constitution  into  the  full  majesty  of  its  might. 

Upon  a  retrospect  of  the  circumstances  and  condi 
tions  out  of  which  the  Constitution  of  1787  was 
evolved,  and  upon  an  impartial  estimate  of  the  agen 
cies  operative  in  its  formation,  the  conclusion  is  ob 
vious  and  incontrovertible  that  the  authorship  of 
that  renowned  instrument  is  justly  ascribed  to  Vir- 


146  ESSAYS  AND  ADDRESSES 

ginia.  It  is  founded  upon  institutions  which  she 
created ;  it  is  the  emanation  of  influences  which  she 
set  in  action  —  she  summoned  the  convention  to 
frame  it;  it  was  her  ideal  and  inspiration;  in  form 
and  substance  it  was  her  conception — her  plastic 
hand  fashioned  its  distinguishing  features ;  she  gave 
it  the  vigor  that  has  sustained  and  impelled  the 
Union  along  an  unexampled  career  of  grandeur  and 
glory. 

The  organic  structure  of  government  of  which 
Virginia  thus  supplied  the  precedent,  and  the  coin 
cidence  of  Federal  supremacy  with  State  autonomy 
which  she  first  realized,  are  not  only  prevalent  al 
ready  on  the  American  continent,  but  are  destined 
at  no  remote  period  to  subdue  the  civilized  world  to 
their  liberal  and  enlightened  sway.  Whatever  for 
tune,  therefore,  may  betide  Virginia  in  the  future 
posterity  will  perpetuate  the  remembrance  of  her 
great  achievement;  and  so  long  as  imperium  et  lib- 
ertas  shall  subsist  as  the  ideal  of  government,  the 
Federal  Constitution  of  1787  will  remain  her  im 
perishable  monument. 

Mr.  President  and  Gentlemen,  if  I  revert  to  an 
early  epoch  for  illustration  of  Virginia's  worth,  it  is 
not  because  her  after  annals  are  wanting  in  great 
names  and  great  deeds.  Down  to  1860  her  sons 
were  ascendant  on  the  national  theater,  and  her 
counsels  controlled  the  policy  of  government. 
They  were  Virginians  who  augmented  the  power  of 
the  Union  by  the  acquisition  of  Louisiana  and  the 
Floridas;  and  the  valor  of  Virginians  extended  its 


ESSAYS  AND  ADDRESSES  147 

empire  to  the  Pacific  Ocean.  He  was  a  Virginian 
who,  by  establishing  the  independence  of  Texas,  in 
troduced  the  "  Lone  Star  "  into  the  constellation  of 
States.  He  was  a  Virginian  who  issued  the  inter 
dict  against  European  conquest  in  America,  and  so 
consecrated  the  continent  as  the  abode  of  demo 
cratic  institutions.  He  was  a  Virginian  whose 
strong  arm  upheld  the  Southern  Confederacy 
against  the  pressure  of  opposing  millions,  and  whose 
martial  exploits  invest  the  "  Lost  Cause  "  with  a 
halo  of  unfading  luster  "  si  Pergama  dextra  de- 
fendi  potuit,  etiam  hac  defensa  juisset." 

From  her  firstborn  to  her  latest, —  from  Wash 
ington  to  Lee,  unequal  only  in  fortune, —  the  Old 
Commonwealth  has  maintained  the  high  strain  of 
her  noble  lineage. 

The  Virginians  are  not  degenerate.  Prostrated 
by  a  great  catastrophe  and  stunned  for  a  time  by  the 
stroke,  they  will  recover  their  unconquerable  spirit; 
and,  true  to  the  traditions  of  their  fathers,  the  gen 
ius  that  ruled  the  Republic  in  the  days  of  its  fairest 
fame  may  again  direct  its  destinies. 

The  story  of  Virginia's  renown  abides  with  us, 
not  as  a  solace  in  our  decline,  but  as  an  incentive  to 
emulation  of  her  ancient  virtues;  that  so  we  may 
transmit  her  glory  to  the  succeeding  generation 
without  blemish  and  without  abatement. 


VIII 

THE  PEOPLE  OF  THE  STATE  OF  NEW 
YORK  VS.  THE  NORTH  RIVER  SUGAR 
REFINING  COMPANY 


VIII 

THE  PEOPLE  OF  THE  STATE  OF  NEW 
YORK  VS.  THE  NORTH  RIVER  SUGAR 
REFINING  COMPANY 

THE  subjoined  argument  is  of  interest  and  impor 
tance,  because :  it  was  the  first  effort  in  any  court  of 
the  country,  by  judicial  decision,  to  break  up  a  trust- 
combination  ;  it  was  successful ;  and  emphatically,  be 
cause  it  established  that  the  principles  of  the  Com 
mon  Law  are  adequate  and  effective  to  the  destruc 
tion  of  such  combination.  For,  at  the  time  there 
was  neither  Federal  nor  State  statute  invalidating 
such  combination. 

Indeed,  subsequent  Federal  and  State  statutes 
afford  a  protection  to  monopolies,  since  it  is  held  that 
the  statutes  supersede  the  operation  of  the  Common 
Law ;  and  that  if  monopolies  be  not  within  statutory 
terms  they  are  immune  against  attack  —  in  analogy 
to  the  perpetual  coypright  of  the  Common  Law, 
which  the  courts  adjudged  to  be  destroyed  by  the 
statute  of  Anne,  limiting  copyright  to  a  definite 
period. 

COURT  OF  APPEALS 
THE  PEOPLE  OF  THE  STATE  OF 

NEW  YORK., 
Plaintiffs  and  Respondents, 

against 

THE  NORTH  RIVER  SUGAR  REFIN 
ING  COMPANY, 
Defendant  and  Appellant. 


152          ESSAYS  AND  ADDRESSES 

Argument  of  Roger  A.  Pryor  for  the  Respondents : 
1890. 

STATEMENT 

Appeal  from  judgment  of  the  General  Term 
of  the  Supreme  Court  in  the  first  judicial  depart 
ment,  entered  upon  an  order  affirming  a  judgment 
in  favor  of  plaintiffs  and  an  order  denying  a  motion 
for  a  new  trial. 

Action  under  the  Code  of  Civil  Procedure  which, 
Section  1798,  provides  that  in  a  suit  by  the  Attorney- 
General  the  charter  of  a  domestic  corporation  may 
be  vacated  upon  the  ground  that  it  has  either: 

First. — Offended  against  any  provision  of  an  act 
by  or  under  which  it  was  created,  altered,  or  re 
newed,  or  an  act  amending  the  same  and  applicable 
to  the  corporation ;  or, 

Second. — Violated  any  provision  of  law  whereby 
it  has  forfeited  its  charter  or  become  liable  to  be 
dissolved  by  the  abuse  of  its  powers ;  or, 

Third. — Forfeited  its  privileges  or  franchises  by 
a  failure  to  exercise  its  powers;  or, 

Fourth. — Done  or  omitted  any  act  which  amounts 
to  a  surrender  of  its  corporate  rights,  privileges  and 
franchises;  or, 

Fifth. — Exercised  a  privilege  or  franchise  not 
conferred  upon  it  by  law. 

Trial  by  jury  in  conformity  with  the  requirement 
of  Section  1800.  Judgment  of  dissolution  in  com 
pliance  with  the  provisions  of  Section  1801. 

Defendant  offered  no  evidence,  but  upon  the  as 
sumption  of  the  insufficiency  of  the  plaintiff's  case, 


ESSAYS  AND  ADDRESSES  153 

moved  the  Court  to  direct  a  verdict  in  its  favor  (  f ol. 
244),  and  omitted  to  request  the  submission  of  any 
question  to  the  jury.  On  motion  of  plaintiffs  the 
Court  directed  a  verdict  for  them  (fol.  244). 

POINTS 


The  judgment  is  vitiated  by  no  technical  error. 

i. — Appellant  is  estopped  to  say  that  the  case 
should  have  gone  to  the  jury;  and  if  there  be  any 
evidence  to  sustain  the  decision,  it  will  be  upheld  on 
appeal.  (Dillon  vs.  Cockroft,  90  N.  Y.,  649;  Prov 
ost  vs.  McEnroe,  102  N.  Y.,  650;  Ormes  vs. 
Dauchy,  82  N.  Y.,  443 ;  Trustees  vs.  Kirk,  68  N.  Y., 
459>  464;  Stratford  vs.  Jones,  97  N.  Y.,  589.) 

An  uncontroverted  state  of  facts  presents  a  ques 
tion  of  law  which  the  Court  not  only  may,  but  must, 
determine  by  a  peremptory  instruction  to  the  jury. 
(Appleby  vs.  Ins.  Co.,  54  N.  Y.,  260;  People  vs. 
Cooke,  8  N.  Y.,  67;  Lomer  vs.  Meeker,  25  N.  Y., 
361;  D  wight  vs.  Ins,  Company,  103  N.  Y. ;  341, 
359;  Kelly  vs.  Burroughs,  102  N.  Y.,  93;  Stratford 
vs.  Jones,  92  N.  Y.,  589 ;  Leggette  vs.  Hyde,  58  N. 
Y.,  275.)  ' 

The  rule  prevails  in  quo  warranto  to  forfeit  a 
corporate  franchise.  (People  vs.  Waterford,  &c., 
2  Keyes,  329.) 

If  the  proof  of  a  fact  be  so  preponderating  that  a 
verdict  against  it  would  be  set  aside,  the  Court  must 
direct  a  verdict  in  accordance  with  the  evidence. 
(Dwight  vs.  Germania  Ins.  Co.,  103  N.  Y.,  358.) 


154          ESSAYS  AND  ADDRESSES 

The  verdict  of  the  jury,  although  under  the  direc 
tion  of  the  Court,  was  a  general  verdict  for  the 
People;  and,  being  a  general  verdict,  it  settles  in 
favor  of  the  prevailing  party  every  fact  litigated 
upon  the  trial.  (Wolf  vs.  Life  Ins.  Co.,  43  Barb., 
405;  affirmed  41  N.  Y.,  620;  Murphy  vs.  Lippe,  35 
Super.  Ct,  542;  Nichols  vs.  Martin,  35  Hun,  168, 
173;  Koehler  vs.  Adler,  78  N.  Y.,  287.) 

"  In  the  disposition  of  the  case  by  this  Court  the 
facts  most  favorable  to  the  plaintiff  must  be  deemed 
to  have  been  found  in  his  favor."  (Cady  vs.  Brad- 
shaw,  116  N.  Y.,  190.) 

2. — The  solitary  exception  to  evidence  (fol.  1658) 
is  plainly  untenable.  (Kelly  vs.  Doody,  116  N.  Y., 
583;  Sweet  vs.  Tuttle,  14  N.  Y.,  465,  472;  DeCamp 
vs.  Mclntire,  115  N.  Y.,  259,  266;  Nicolay  vs.  Un- 
ger,  80  N.  Y.,  54,  57 ;  DeWolf  vs.  Williams,  69  N. 
Y.,  621,  662;  Nichols  vs.  White,  41  Hun  155; 
Knapp  vs.  Smith,  27  N.  Y.,  281.) 

The  evidence  was  competent  to  prove  an  essen 
tial  fact  in  the  case,  namely,  that  defendant's  stock 
was  held  by  the  board  for  the  purposes  declared  in 
the  Sugar  Refineries  Company  deed.  For  what 
purpose  the  stock  was  held  —  whether  for  the  in 
terest  of  the  combination  or  for  another  and  differ 
ent  object  —  is  plainly  a  question  of  fact,  and  a 
question  not  soluble  by  construction  of  the  deed, 
but  to  be  answered  only  by  a  witness  cognizant  of 
the  purposes  for  which  the  stock  was  deposited  with 
the  board.  Conceivably  the  stock  might  have  been 
transferred  for  an  object  altogether  foreign  to  the 


ESSAYS  AND  ADDRESSES  155 

purposes  of  the  combination;  and,  if  so,  then  it 
would  not  have  been  held  under  the  provisions  of 
the  deed.  Parole  evidence  to  connect  an  instrument 
with  its  subject  and  object  is  always  competent  when 
necessary.  If  here  the  evidence  were  not  neces 
sary,  i.  e.,  if  the  deed  exhibited  the  connection  with 
the  stock,  then  the  evidence  is  harmless. 

B 

On  the  merits  the  validity  of  the  judgment  is 
unimpeachable  —  the  unchallenged  evidence  exhibit 
ing  a  clear  case  for  the  forfeiture  of  defendant's 
charter. 


The  creation  of  a  corporation  is  an  act  of  sover 
eignty  (Wood's  Field  on  Corporations,  Sec.  6),  and 
the  consideration  of  the  grant  of  corporate  fran 
chises  is  the  public  benefit. 

"  The  objects  for  which  a  corporation  is  created 
are  universally  such  as  the  Government  wishes  to 
promote.  They  are  deemed  beneficial  to  the  coun 
try;  and  this  benefit  constitutes  the  consideration 
and  in  most  cases,  the  sole  consideration  of  the 
grant."  (Marshall,  C.  J.,  in  Trustees  of  Dartmouth 
College  vs.  Woodward,  4  Wheaton,  518,  637;  The 
Binghamton  Bridge,  3  Wall.,  51,  73;  2  Waterman 
on  Corp.,  Sec.  431.) 

"  In  the  granting  of  charters  the  Legislature  is 
presumed  to  have  had  in  view  the  public  interest, 
and  public  policy  is  concerned  in  the  restriction  of 


156  ESSAYS  AND  ADDRESSES 

corporations  within  chartered  limits,  and  a  depar 
ture  therefrom  is  only  deemed  excusable  when  it  can 
not  result  in  prejudice  to  the  public."  (Gray,  J., 
in  Leslie  vs.  Lorillard,  no  N.  Y.,  531.) 

"  Grants  of  franchises  are  the  conferring  on  indi 
viduals  rights  belonging  to  the  whole  people,  and 
can  only  be  justified  by  securing  to  the  people,  in  the 
grants  themselves,  benefits  equivalent  to  the  rights 
which  the  grants  take  from  them.  This  can  only 
be  done  by  enforcing  a  strict  performance  of  all  the 
beneficial  conditions  of  such  grants."  (Bradish, 
Pres.,  in  Thompson  vs.  People,  23  Wend.,  559.) 

"  The  charters  and  franchises  of  modern  times 
are  contracts  made  for  public  consideration  and 
advantage."  (Id.,  580,  Senator  Verplanck.) 

ii 

Hence,  corporate  franchises  are  granted  in  trust, 
and  upon  condition;  in  trust,  on  the  one  hand,  that 
they  be  exerted  to  the  attainment  of  the  object  for 
which  they  are  conceded,  and  on  the  other  that 
they  be  not  abused  to  the  public  detriment;  upon 
the  condition  that  for  nonuser  or  misuser  they  may 
be  reclaimed  by  the  State  in  the  appropriate  judicial 
proceeding. 

"  Franchises  may  be  forfeited  by  a  breach  of  the 
trust  on  which  they  were  granted,  and  perversion  of 
the  end  of  the  grant  or  institution.  The  perform 
ance  of  the  duties  enjoined  by  the  charter  is  a  con 
dition  of  the  grant."  (Rapallo,  J.,  in  People  vs.  W. 
T.  &  B.  Co.,  47  N.  Y.,  586,  592.) 


ESSAYS  AND  ADDRESSES  157 

"  A  corporation  may  .be  dissolved,  for  it  is  cre 
ated  upon  a  trust,  and  if  that  be  broken  it  is  for 
feited."  (Sir  James  Smith's  Case,  4  Modern,  58.) 

"  Franchises,  being  regal  privileges  in  the  hands 
of  the  subject,  are  held  to  be  granted  upon  the  con 
dition  of  making  a  proper  use  of  them;  and  may  be 
lost  or  forfeited  either  by  abuse  or  neglect."  (2 
Black.  Comm.,  153.;  Earl  of  Shrewsbury's  Case,  9 
Rep.,  46.) 

"  All  corporate  franchises  are  granted  upon  con 
dition  that  they  should  be  duly  executed  according 
to  the  charter  that  settles  the  constitution."  (Lord 
Holt  in  City  of  London  vs.  Vanacker,  i  Lord  Ray 
mond,  499.) 

"  The  primary  object  of  the  institution  of  a  cor 
poration  is  the  public  welfare,  and  the  interest  of 
the  stockholders  is  but  secondary;  hence  the  will 
ful  frustration  of  that  intention  is  a  fraud  on  the 
public  " —  affirming  of  a  corporation  whose  stock 
had  been  absorbed  by  a  rival  corporation  to  prevent 
competition.  (Appeal  of  the  Electric  Light,  &c., 
Co.;  122  Pa.  St.,  154;  9  Am.  St.  R.,  81.) 

"  A  corporation  is  made  a  body  politic  on  the  im 
plied  condition  that  it  should  demean  itself  faith 
fully  and  honestly  in  the  use  of  all  its  franchises." 
(People  vs.  Bristol,  &c.,  23  Wend.,  235-6.) 

"  The  performance  of  the  duties  enjoined  by  the 
fundamental  law  by  or  under  which  it  is  created  is 
in  all  cases  a  condition  of  the  grant  of  corporate 
privileges ;  and  a  failure,  therefore,  to  perform  any 
of  these  duties  is  a  breach  of  the  condition  upon 


158  ESSAYS  AND  ADDRESSES 

which  the  corporation  holds  its  franchises."  Peo 
ple  vs.  Fishkill,  &c.,  27  Barb.,  445,  452.) 

"  That  a  corporation  may  be  dissolved  for  a 
breach  of  trust  is  the  settled  doctrine  at  this  day." 
(Kent,  C.,  in  Slee  vs.  Bloom,  5  Johns.  Ch.,  380.) 

"  A  corporation  must  come  up  to  the  substantive 
objects  for  which  it  was  instituted.  If  it  depart 
from  any  of  these,  it  is  guilty  of  a  breach  of  trust." 
(People  vs.  Bristol,  &c.,  23  Wend.,  236.) 

"  Every  private  corporation  undertakes  and 
agrees,  upon  condition  of  forfeiture,  that  it  will  ex 
ercise  the  rights  and  privileges  conferred  upon  it  in 
furtherance  of  the  objects  and  purposes  of  its  crea 
tion,  and  not  otherwise;  and  that  it  will  so  manage 
and  conduct  its  affairs  that  it  shall  not  become  dan 
gerous  or  hazardous  to  the  safety  or  well  being  of 
the  State  or  community  in  and  with  which  it  trans 
acts  business."  (Ward  vs.  Farwell,  97  111.,  593.) 

"  The  corporate  franchise  is  granted  upon  condi 
tion  that  it  shall  become  void  in  case  of  misuser." 
(People  vs.  Phoenix  Bank,  24  Wend.,  433.) 

"  Corporate  rights  and  powers  are  the  correlatives 
of  corporate  obligations  and  duties ;  constitute  the 
consideration  for  the  corporate  franchises ;  and  their 
performance  may  be  exacted  as  a  condition  of  cor 
porate  existence."  (Mayor  vs.  R.  R.  Co.,  113  N. 
Y.,  311,  319.) 

"  Franchises  may  be  forfeited  by  breach  of  the 
trust  on  which  they  are  granted,  and  perversion  of 
the  objects  of  the  grant."  (People  vs.  Dispensary, 
7  Lans.,  306.) 


ESSAYS  AND  ADDRESSES  159 

"  The  grant  of  corporate  franchises  is  necessarily 
subject  to  the  condition  that  the  privileges  and  fran 
chises  conferred  shall  not  be  abused,  and  that  when 
abused  or  misemployed  they  may  be  withdrawn  by 
proceedings  consistent  with  law."  (Ins.  Co.  vs. 
Needles,  113  U.  S.,  574.) 

"  A  private  corporation  created  by  the  Legisla 
ture  may  lose  its  franchises  by  a  misuser  or  nonuser 
of  them ;  and  they  may  be  resumed  by  the  govern 
ment  under  a  judicial  judgment  upon  a  quo  war- 
ranto  to  ascertain  and  enforce  the  forfeiture.  This 
is  the  common  law  of  the  land,  and  it  is  a  condition 
annexed  to  the  creation  of  every  such  corporation." 
(Terrett  vs.  Taylor,  9  Cranch.,  52;  2  Kent  Com., 
312;  Slee  vs.  Bloom,  5  Johns.  Ch.,  366,  379; 
Com.  vs.  Bank,  21  Picker,  542 ;  A.  and  A.  on  Corp., 
Sec.  774  (9th  ed.)  ;  Ins.  Co.  vs.  Needles,  113  U.  S. 

574-) 

'  The  grant  to  a  corporation  being  made  upon  an 
implied  pledge  that  the  condition  of  it  shall  be  ful 
filled,  when  the  public  is  affected  by  a  breach  of 
the  condition,  it  is  a  violation  by  the  corporation  of 
its  duty.  The  State  is  not  required  to  prove  an 
actual  injury;  it  is  a  sufficient  cause  of  forfeiture  if 
the  act  be  such  as  in  the  nature  of  things  is  calcu 
lated  to  produce  injury."  (2  Waterman  on  Corp., 
Sec.  427.) 

"  The  public  have  an  interest  that  a  corporation 
shall  not  transcend  the  powers  granted."  (R.  R. 
Co.  vs.  Keokuk  Co.,  113  U.  S.,  384.) 


160  ESSAYS  AND  ADDRESSES 

in 

Any  act  of  a  corporation,  in  violation  of  law  and 
to  the  public  detriment,  forfeits  its  franchises. 

"  It  is  a  sufficient  cause  of  forfeiture,  if  the  acts 
complained  of  are  illegal  either  under  the  statute  or 
at  common  law,  or  in  violation  of  the  inherent  and 
fundamental  principles  or  implied  conditions  of  its 
existence."  (State  vs.  R.  R.  Company,  45  Wise., 
590;  Ches.  &  Ohio,  &c.,  vs.  Bait.  &  Ohio,  &c.,  4  Gill 
and  Johns.,  121.) 

The  existence  of  a  corporation  may  be  annulled 
when  it  has  "  violated  any  provision  of  law  where 
by  it  has  forfeited  its  charter  or  become  liable  to 
be  dissolved  by  the  abuse  of  its  powers."  (Code 
Civ.  Pro.,  Sec.  1798,  Sub  2.) 

"  The  statute  provides  that  an  information  may 
be  filed  to  procure  the  forfeiture  of  the  charter  and 
privileges  of  a  corporate  body  for  a  violation  of  any 
provision  of  law  in  such  way  as  to  constitute  a 
positive  misuser."  (People  vs.  Fishkill,  &c.,  27 
Barb.,  452.) 

"  The  misuser  must  be  such  a  neglect  or  disre 
gard  of  the  trust,  or  such  a  perversion  of  it,  as  in 
some  manner  or  in  some  degree  to  lessen  its  utility 
to  those  for  whose  benefit  it  was  instituted  "  (i.e., 
the  people),  "  or  else  to  work  some  other  public  in 
jury."  (Thompson  vs.  People,  23  Wend.,  581-2, 
Verplanck,  Senator.) 

"Some  misdemeanor  in  the  trust,  injurious  to 
the  public,"  is  a  sufficient  ground  of  forfeiture. 
(Ich.,  583-4.) 


ESSAYS  AND  ADDRESSES  161 

IV 

Acts  and  contracts  ultra  vires  the  corporate  au 
thority  are  illegal;  and  where  prejudicial  to  the 
public  interests  are  grounds  of  forfeiture  of  the 
corporate  franchise. 

i. — "  The  act  of  incorporation  is  to  them  an  en 
abling  act ;  it  gives  them  all  the  power  they  possess ; 
and  when  it  prescribes  to  them  a  mode  of  contract 
ing,  they  must  observe  that  mode."  (Marshall,  C. 
J.,  in  Head  vs.  The  Providence  Co.,  2  Cranch., 
169.) 

In  grants  by  the  public,  nothing  passes  by  impli 
cation.  (U.  S.  vs.  Arrendondo,  6  Peters,  736.) 

"  The  language  employed  (in  the  act  of  charter) 
defines  their  power  and  duties,  and  excludes  by 
necessary  implication  .  .  .  the  adoption  of 
any  other  method  for  the  promotion  of  such  busi 
ness  than  those  specially  pointed  out  by  the  statute." 
(Ruger,  C.  J.,  in  Nassau  Bank  vs.  Jones,  95  N.  Y. 
121.) 

"  The  rule  of  construction  in  this  class  of  cases  is 
that  it  shall  be  most  strongly  against  the  corpora 
tion.  Every  reasonable  doubt  is  to  be  resolved  ad 
versely.  Nothing  is  to  be  taken  as  conceded  but 
what  is  given  in  unmistakable  terms,  or  by  an  impli 
cation  equally  clear.  The  affirmative  must  be 
shown.  Silence  is  negation,  and  doubt  is  fatal  to 
the  claim.  This  doctrine  is  vital  to  the  public  wel 
fare."  (Fertilizing  Co.  vs.  Hyde  Park,  97  U.  S., 
666.) 


1 62          ESSAYS  AND  ADDRESSES 

"  The  charter  of  a  corporation  is  the  measure  of 
its  powers,  and  the  enumeration  of  these  powers  im 
plies  the  exclusion  of  all  others.''  (Thomas  vs.  R. 
R.  Co.,  101  U.  S.,  82 ;  Green  Bay,  &c.,  vs.  Com 
pany,  107  U.  S.,  98;  Pratt  vs.  Short,  79  N.  Y.,  437.) 

This  elementary  common  law  principle,  that  a 
corporation  can  exercise  no  power  not  expressly 
granted,  or  necessarily  implied,  is  made  a  positive 
prohibition  of  statute,  which  prescribes  that  "  no 
corporation  shall  possess  or  exercise  any  corporate 
powers,  except  such  as  are  given  or  enumerated,  or 
are  necessary  to  the  exercise  of  the  powers  so  given 
or  enumerated."  (First  Part  Rev.  Stats.,  Title  III ; 
Ch.  1 8,  Sec.  3;  Laws  1861,  Ch.  170;  Milbank  vs. 
R.  R.  Co.,  64  How.,  24.) 

Hence,  an  act  ultra  vires  is  an  infraction  of  posi 
tive  law. 

And  this  statute  declares  the  public  policy  of  the 
State  (Morris,  &c.,  vs.  R.R.  Co.,  20  N.  J.  Eq.,  542)  ; 
and  makes  an  unauthorized  corporate  act  illegal. 
(Ashbury,  &c.,  vs.  Riche,  L.  R.,  7  H.  of  L.,  653.) 

2. — "  Judgment  of  ouster  and  dissolution  has  al 
ways  been  the  punishment  for  the  wanton  violation 
of  a  charter;  and  it  may  be  made  to  follow  whenever 
the  proper  public  authority  shall  see  fit  to  invoke  its 
application."  (Nat.  Bank  vs.  Matthews,  98  U.  S., 
621,  629.;  Bank  vs.  Whitney,  103  U.  S.,  102.) 

"  If  the  utility  of  the  corporation  be  lessened,  or 
if  any  injury  result  to  the  public,  by  an  act  which 
it  is  not  authorized  to  do,  it  is  a  forfeiture."  (Bank 
vs.  State,  6  Smedes  and  M.,  599,  623.) 


ESSAYS  AND  ADDRESSES       163 

"  When  a  corporation  does  acts  which  it  is  not 
authorized  or  is  forbidden  to  do,  the  State  may  for 
feit  its  franchises  and  dissolve  the  corporation." 
(Taylor  on  Corp.,  Sec.  457,  289,  459;  People  vs. 
Utica,  15  Johns,,  358.) 

For,  "  The  public  has  an  interest  in  the  proper  ad 
ministration  of  the  powers  conferred  by  the  act  on 
the  corporation."  (East  Anglia,  &c.,  vs.  R.  R.  Co., 
ii  C.  B.,  775.) 

"  A  corporation  may  incur  a  forfeiture  of  its 
franchises  by  the  doing  of  an  illegal  act.  Any  act 
of  a  corporation  which  is  forbidden  by  its  charter, 
or  by  a  general  rule  of  law,  and  strictly  every  act 
which  the  charter  does  not  expressly  or  impliedly 
authorize,  is  unlawful ;  and  if  the  doing  of  such  act 
is  an  injury  to  the  public,  it  may  be  sufficient  ground 
of  forfeiture."  (2  Morawetz  on  Corp.,  Sec.  1024.) 

An  act  ultra  vires  is  the  usurpation  of  a  fran 
chise,  and  cause  of  forfeiture.  (People  vs.  Trus 
tees,  5  Wend.,  211.) 

"  A  contract  with  a  corporation  may  be  binding 
on  the  parties,  though  it  was  an  abuse  of  the  cor 
porate  powers  for  which  the  corporation  is  answer 
able  to  the  government  which  created  it."  (Bank 
vs.  Hammond,  i  Rich.  (S.  C.),  288;  Southern  vs. 
Lanier,  5  Fla.,  100;  Silver  Lake  vs.  North,  5  John. 

Ch.,  373-) 

'''  The  contracts  of  corporations  which  are  not 
authorized  by  their  charters,  are  illegal,  because 
they  are  made  in  contravention  of  public  policy." 
(Selden,  J.,  in  Bissell  vs.  R.  R.,  22  N.  Y.,  285.) 


164          ESSAYS  AND  ADDRESSES 

Where  corporations  abuse  their  powers,  e.  g.,  by 
acts  ultra  vires,  "  the  State  may  interpose  and  re 
claim  their  charters."  (Id.,  259.) 

"  A  contract  made  by  a  corporation  in  violation 
of  the  terms  of  its  charter  is  ultra  vires,  and  void  as 
against  public  policy."  (President,  &c.,  vs.  R.  R. 
Co.,  7  Lans.,  241.) 

An  act  ultra  vires  is  an  abuse  of  the  corporate 
franchise.  (Thomas  vs.  City,  12  Wallace,  356; 
Green's  Brice,  708-9  —  2d  ed. ) . 

"  The  word  '  unlawful '  as  applicable  to  corpora 
tions,  is  not  used  exclusively  in  the  sense  of  malum 
in  se  or  malum  prohibition.  It  is  also  used  to  desig 
nate  powers  which  companies  are  not  authorized 
to  exercise,  or  contracts  which  they  are  not  author 
ized  to  make,  or  acts  which  they  are  not  authorized 
to  do  —  such  acts,  powers  and  contracts  as  are  ul 
tra  vires."  (People  vs.  Chicago  Gas  Trust  Co.,  22 
Chicago  Legal  News,  108,  41  Albany  Law  Journal, 

58.) 

A  corporation  may  be  dissolved  when  it  has  "  ex 
ercised  a  privilege  or  franchise  not  conferred  upon 
it  by  law"  (Code  Civ.  Pro.,  Sec.  1798.  Sub.  5),  or 
"  offended  against  any  provision  of  the  act  under 
which  it  was  created  "  (Sub.  i),  or  when  it  "  has 
violated  any  provision  of  law  whereby  it  has  be 
come  liable  to  be  dissolved  by  abuse  of  its  powers  " 
(Sub.  2). 

"  Considering  the  authority  which  the  Attorney- 
General  has,  by  suit,  to  forfeit  the  franchises  of 
corporations  for  misuse  or  abuse,  and  to  regulate 


ESSAYS  AND  ADDRESSES  165 

and  restrain  them  in  the  exercise  of  their  corporate 
rights,  little  danger  is  to  be  apprehended  from  the 
overgrowth  of  their  power,  or  their  monopolistic 
tendencies."  (Ruger,  C.  J.,  in  People  vs.  O'Brien, 
in  N.  Y.,  i.) 

A  common  law  ground  of  forfeiture  is  still  avail 
able  though  not  within  the  statute.  (People  vs. 
Bristol,  23  Wend.,  222;  State  vs.  R.  R.  Co.,  45 
Wise.,  589;  People  vs.  Palmer,  109  N.  Y.,  no.) 


The  rule  that  an  illegal  or  unauthorized  act  is 
sufficient  ground  of  corporate  forfeiture,  is  abun 
dantly  illustrated  by  adjudicated  cases. 

In  the  King  vs.  The  Mayor  and  Commonalty  of 
London,  8  Howell's  St.  Tr.,  1078,  "  the  Great  Quo 
Warranto  Case  "  (Life  of  Cnief  Justice  Saunders 
by  Lord  Campbell),  it  was  argued  by  Treby  and 
Pollexfen  for  the  defendant  that  the  charter  of  a 
corporation  was  not  liable  to  forfeiture  for  an  act 
ultra  vires  or  contrary  to  law;  and  that  the  un 
authorized  or  illegal  act  was  not  predicable  of  the 
corporation  —  a  mere  ens  legis,  incapable  of  action 
—  but  of  the  individuals  composing  it;  who  alone 
were  accountable  to  the  law. 

But  the  contention  was  discredited  by  the  Court, 
and  the  principle  established,  that  the  act  of  its 
constituents  is  the  act  of  the  corporation,  and  that 
a  corporation  incurs  the  penalty  of  forfeiture  by  an 
act  illegal  or  ultra  vires. 


166  ESSAYS  AND  ADDRESSES 

However  odious  this  decision  in  its  political  as 
pect,  its  validity  as  a  legal  proposition  stands  un 
challenged  to  the  present  day.  (Thompson  vs.  The 
People,  23  Wend.,  572.) 

So,  when  a  bank  chartered  to  do  business  in  one 
county  of  the  State  established  a  branch  in  another 
county,  it  became  forfeit.  (  People  vs.  Bank,  Doug 
lass  (Mich.),  282.) 

So,  when  a  college  chartered  in  one  place  estab 
lishes  a  medical  school  in  another.  (The  Peo 
ple  vs.  Geneva  College,  5  Wend.,  211.) 

So,  extortionate  charges  by  a  railroad  company. 
(Attorney-General  vs.  R.  R.  Co.,  35  Wise.,  432, 

532.) 

So,  a  neglect  by  a  bank  to  make  a  report  required 
by  law.  (State  vs.  Bank,  5  Ohio  St.,  171.) 

So,  violating  a  restriction  on  the  rate  of  interest 
upon  loans.  (Com.  vs.  Bank,  28  Penn.  St.,  383; 
State  vs.  Bank,  33  Miss.,  474.) 

So,  keeping  its  principal  place  of  business,  officers 
and  records  in  another  State.  (State  vs.  R.  R.  Co., 
45  Wise.,  580.) 

So,  dividing  with  an  agent  who  procured  a  legis 
lative  appropriation  to  the  corporation.  (People 
vs.  Dispensary,  7  Lans.,  304.) 

So,  embezzlement  of  funds  on  deposit  with  a 
bank.  (Bank  vs.  State,  i  Blackf.  (Ind.),  267.) 

So,  omission  of  a  duty  expressly  imposed  by  law, 
e.  g.,  to  make  a  report.  (Attorney-General  vs.  R. 
R.  Co.,  6  Iredell  (Law),  469.) 

So,  when  an  insurance  company  carries  on  bank- 


ESSAYS  AND  ADDRESSES  167 

ing  operations.  (People  vs.  Utica  Ins.  Co.,  15 
Johns.,  358.) 

So,  the  unauthorized  lease  by  a  railroad  company 
of  its  road,  rights  and  franchises.  (State  vs.  A.  & 
N.  R.  R.  Co.,  4  R.  R.  &  Corporation  Journal,  86; 
Penn.  Co.  vs.  St.  Louis,  &c.,  R.  R.  Co.,  118  U.  S. 
290.) 

So,  a  railroad  corporation  forfeits  its  charter,  on 
quo  warrant o,  by  ceasing  to  operate  a  part  of  its 
route.  (People  vs.  The  R.  R.  Co.,  24  N.  Y.,  261.) 

So,  a  corporation  forfeits  its  franchise  by  holding 
property  in  violation  of  the  restraints  of  its  char 
ter.  (Matter  of  McGraw,  in  N.  Y.,  in.) 

So,  if  a  railroad  company  abandon  a  portion  of 
the  line  it  was  incorporated  to  operate,  it  will  be 
dissolved.  (People  vs.  R.  R.  Co.,  24  N.  Y.,  261.) 

For  further  instances  and  illustrations  of  grounds 
of  forfeiture,  see  2  Kyd  on  Corp.,  479  et  seq.;  A. 
and  A.  on  Corp.,  Sees.  774-776;  2  Waterman  on 
Corp.,  Sec.  427;  Green's  Brice,  787;  People  vs. 
Bristol,  23  Wend.,  233-250;  State  vs.  R.  R.  Co.,  8 
Am.  St.  R.,  188-190,  note  by  Freeman. 

VI 

Agreements  tending  to  monopoly,  i.  e.,  "  any 
combination  among  merchants  to  raise  the  price  of 
merchandise,  to  the  detriment  of  the  public"  (Bou- 
vier's  Law  Diet.,  "  Monopoly")  are  illegal.  (Peo 
ple  vs.  American  Sugar  Refining  Company,  7  Rail 
way  and  Corporation  Law  Journal,  83. ;  Richardson 
vs.  Buhl,  Id.,  89;  People  vs.  Chicago  Gas  Trust,  41 


i68          ESSAYS  AND  ADDRESSES 

Alb.  L.  J.,  68;  Anderson  vs.  Jett,  41  Alb.  L.  J.,  103; 
Leonard  vs.  Poole,  114  N.  Y.,  371 ;  Arnot  vs.  Coal 
Company,  68  N.  Y.,  559;  Stanton  vs.  Allen,  5 
Denio,  434;  Clancy  vs.  Salt  Company,  62  Barb., 
395 ;  Hooker  vs.  Vanderwater,  4  Denio,  349 ;  Texas 
&  P.  Ry.  Co.  vs.  Southern  P.  Ry.  Co.,  6  Southern 
Reporter  888,  891,  La.  Supreme  Court,  1889.) 

People  vs.  Fisher,  14  Wend.,  9-19;  Colles  vs. 
Trow  Company,  n  Hun,  397;  Watson  vs.  The 
Companies,  52  How.,  348;  Coal  Co.  vs.  Coal  Co., 
68  Penn.  St.,  182;  Salt  Co.  vs.  Guthrie,  35  Ohio 
St.,  672 ;  Croft  vs.  McConoughy,  79  111.,  339 ;  Santa 
Clara  vs.  Hayes,  76  Cal.,  387;  9  Am.  St.  R.,  211; 
Bank  vs.  King,  44  N.  Y.,  87;  Case  of  Monopolies, 
n  Coke,  84;  Raymond  vs.  Leavitt,  46  Mich.,  447; 
India  Bag  Co.  vs.  Koch,  14  La.  Ann.,  168;  Ray  vs. 
Mackin,  100  111.,  246;  People  vs.  Stephens,  71  N. 
Y.,  545;  Marsh  vs.  Russell,  66  N.  Y.,  288;  Hart 
ford,  &c.,  vs.  R.  R.  Co.,  3  Robt.  411;  Hilton  vs. 
Eckersley,  6  Ell.  &  Bl.,  47 ;  Central,  &c.,  vs.  Collins, 
40  Ga.,  582 ;  Hoffman  vs.  Brooks,  1 1  Weekly  Law 
Bulletin,  258. 

And,  in  all  the  cases  adjudging  monopoly  agree 
ments  and  combinations  to  be  illegal,  the  ground  of 
decision  is,  that  they  tend  to  the  public  prejudice, 
by  preventing  competition  and  enhancing  prices. 

"  Monopolies  are  favorites  neither  with  Courts 
nor  people.  They  operate  in  restraint  of  competi 
tion,  and  hence  are,  as  a  rule,  detrimental  to  the 
public  welfare."  (Electric  Company,  9  Am.  St. 
R.,  82.) 


ESSAYS  AND  ADDRESSES  169 

"  Free  competition  is  the  life  of  business ;  and  all 
combinations  among  persons  or  corporations  for  the 
purpose  of  raising  or  controlling  the  prices  of  mer 
chandise,  or  any  of  the  necessaries  of  life,  are 
monopolies  and  intolerable,  and  ought  to  receive  the 
condemnation  of  all  courts."  (Richardson  vs. 
Buhl,  7  Railway  &  Corp.  Jour.,  96.) 

"  Monopolies  are  destructive  of  individual  right 
and  public  interests."  (Metcalf  vs.  Brand,  9  Am. 
St.  R.,  289;  86  Ky.,  331.) 

"  The  natural  law  of  supply  and  demand  is  the 
best  law  of  trade."  (State  vs.  Goodwill,  41  Alb. 
Law  Journal,  53,  West  Virginia  Supreme  Court.) 

"  Rivalry  is  the  life  of  trade.  The  thrift  and 
welfare  of  the  people  depend  upon  it.  Monopoly  is 
opposed  to  it  all  along  the  line."  (Anderson  vs. 
Jett,  41  Alb.  L.  Jour.,  104.) 

"  Monopolies  are  justly  odious,  as  they  operate 
not  only  injuriously  to  trade,  but  against  the  gen 
eral  prosperity  of  the  country."  (Charles  River 
Bridge  vs.  Warren  Bridge,  n  Peters,  567.) 

"  I  hold  it  to  be  an  incontrovertible  proposition 
of  both  English  and  American  public  law,  that  all 
mere  monopolies  are  odious  and  against  common 
right.  .  .  .  Monopolies  are  the  bane  of  our 
body  politic  at  the  present  day.  In  the  eager  pur 
suit  of  gain  they  are  sought  in  every  direction. 
They  exhibit  themselves  in  corners  in  the  stock 
market  and  produce  market  and  in  many  other 
ways."  (Bradley,  J.,  in  Butchers'  Union  vs.  Cres- 
ent,  in  U.  S.,  766.) 


1 70          ESSAYS  AND  ADDRESSES 

"The  statute  against  monopolies  (1623)  is  the 
magna  charta  of  British  industry."  (2  Kent,  271, 
Marginal  Note  c.) 

"  It  is  against  the  general  policy  of  the  law  to 
destroy  or  interfere  with  free  competition,  or  to  per 
mit  such  destruction  or  interference.  An  unauthor 
ized  monopoly,  therefore,  is  against  public  policy 
as  destroying  or  interfering  with  free  competi 
tion."  (Stewart  vs.  The  Company,  17  Minn., 

372.) 

"  A  contract  which  tends  to  create  and  perpetuate 
a  monopoly  is  against  public  policy."  (Gas  Co.  vs. 
Gas  Co.,  2  Am.  State  Reports,  124.) 

"  In  its  very  nature,  a  right  to  exclude  competi 
tion  is  injurious  to  the  public."  (City  vs.  Gas 
Light  Co.,  70  Mo.,  69.) 

"  Competition  is  the  life  of  trade,  and  whatever 
destroys  or  even  relaxes  competition  in  trade  is  in 
jurious  if  not  fatal  to  it."  (4  Denio,  353 ;  14 
Wend.,  19.) 

"  Public  policy  favors  competition  in  trade,  to 
the  end  that  its  commodities  may  be  afforded  to  the 
consumer  as  cheaply  as  possible;  and  it  is  opposed 
to  monopolies,  which  tend  to  enhance  market  prices 
to  the  injury  of  the  general  public."  (Salt  Co.  vs. 
Guthrie,  35  Ohio  St.,  666.) 

"  There  are  three  inseparable  incidents  to  every 
monopoly:  that  the  price  of  the  commodity  will  be 
raised ;  that  the  commodity  is  not  so  good  and  mer 
chantable  as  before;  that  it  tends  to  the  impoverish 
ment  of  artificers  and  others  " ;  and  so  a  charter  of 


ESSAYS  AND  ADDRESSES  171 

monopoly  was  held  void,  as  against  common  right 
and  the  liberty  of  the  subject.  (The  Case  of 
Monopolies,  n  Coke,  84.) 

"  With  results  naturally  flowing  from  the  laws  of 
supply  and  demand,  the  Courts  have  nothing  to 
do;  but  when  agreements  are  resorted  to  for  the 
purpose  of  taking  trade  out  of  the  realm  of  com 
petition,  the  Courts  cannot  be  successfully  invoked, 
and  their  execution  will  be  left  to  the  volition  of 
the  parties  thereto."  (Santa  Clara,  &c.,  vs.  Hayes, 
76  Cal.,  387,  9  Am.  St.  Rep.,  211.) 

In  Richardson  vs.  Buhl,  7  Railway  and  Corp. 
Journal,  89,  the  Supreme  Court  of  Michigan  (1889) 
held  of  a  corporation  organized  to  absorb  other 
match  manufactories,  "  that  such  corporation  is 
unlawful  and  against  public  policy,  its  object 
being  to  prevent  competition,  and  to  control  the 
price  of  an  article  of  necessity."  In  People  vs. 
Chicago  Gas  Trust  Company,  41  Albany  Law  Jour 
nal,  68,  the  Supreme  Court  of  Illinois  (1889)  ruled 
the  same  point. 

In  the  People  vs.  The  American  Sugar  Refining 
Company,  7  Railway  &  Corp.  Law  Journal,  83,  the 
Superior  Court  of  the  City  of  San  Francisco 
(1890)  held  of  this  identical  combination  that  it 
constitutes  a  monopoly  and  an  unlawful  business 
(p.  86),  and  that  connection  with  it  forfeited  a 
corporate  charter. 

In  Anderson  vs.  Jett,  41  Albany  Law  Journal, 
103,  the  Kentucky  Court  of  Appeals  ( 1889)  held  of 
an  agreement  between  owners  of  two  rival  steam- 


1 72          ESSAYS  AND  ADDRESSES 

boats,  to  divide  the  net  profits  of  each  in  a  certain 
proportion,  each  bearing  its  own  expenses,  neither 
to  sell  his  boat  without  notice  to  the  other,  and  the 
one  selling  out  not  to  enter  the  trade  for  a  year, 
that  its  object  and  effect  was  to  prevent  competition 
and  a  consequent  reduction  of  charges,  and  so  was 
void  as  against  public  policy. 

In  Leonard  vs.  Poole,  114  N.  Y.,  371,  this  Court 
(Second  Division)  held  that  a  combination  for  the 
purpose  of  raising  the  price  of  lard  was  "  an  unlaw 
ful  plot  "  (378),  and  an  "  indictable  misdemeanor  " 
(377),  under  section  168  of  the  Penal  Code,  because 
injurious  to  trade  and  commerce. 

In  Mill  and  Lumber  Co.  vs.  Hayes,  76  Cal.,  387 ; 
9  Am.  St.  R.,  2ii,  the  Supreme  Court  of  California 
denounced  as  against  public  policy  and  void  a  con 
tract  "  entered  into  for  the  purpose  of  limiting  the 
supply  of  lumber  and  increasing  the  price  thereof, 
and  giving  one  of  the  contracting  parties  control  of 
all  lumber  near  a  particular  town  in  the  year  desig 
nated,  and  to  control  the  supply  of  lumber  for  that 
year  in  the  counties  mentioned  in  the  contract." 

An  agreement  between  shareholders  not  to  sell 
their  respective  stock  without  the  concurrent  con 
sent  of  all  is  void,  because  "  in  restraint  of  trade 
and  against  public  policy."  (Fisher  vs.  Bush,  35 
Hun,  641.) 

An  agreement  by  several  firms  not  to  sell,  except 
with  the  consent  of  the  majority,  is  a  combination 
to  enhance  price,  and  unlawful.  (India  Bag  Co. 
vs.  Koch,  14  La.  Ann.,  168.) 


ESSAYS  AND  ADDRESSES  173 

In  Arnot  vs.  Coal  Company,  68  N.  Y.,  558,  the 
purpose  of  the  arrangement  was  "  to  artificially  en 
hance  the  price  "of  coal ;  and  the  Court  held  that 
"  a  combination  to  effect  such  a  purpose  is  inimical 
to  the  interests  of  the  public,  and  all  contracts  de 
signed  to  effect  such  an  end  are  contrary  to  public 
policy,  and  therefore  illegal";  and  that  this  prin 
ciple  "  is  too  well-settled  by  adjudicated  cases  to 
be  questioned  at  this  day  "  (p.  565). 

In  Colles  vs.  The  Trow  Company,  u  Hun,  397, 
the  Court  held  that  an  agreement  by  defendant  com 
pany  to  expend  its  funds  in  stopping  the  competi 
tion  of  a  rival,  was  ultra  vires  and  void  — •  saying, 
page  398,  "  the  corporation  was  not  created  for  the 
purpose  of  destroying  competition  and  establish 
ing  a  monopoly  in  any  other  way  than  such  as 
might  be  incidental  to  the  superiority  of  its  manu 
factures  and  their  excellence  and  cheapness." 

In  the  People  vs.  Fisher,  14  Wend.,  9,  19,  the 
Court  say  that  "  competition  is  the  life  of  trade," 
and  that  "  combinations  and  confederacies  to  en 
hance  the  prices  of  any  article  of  trade  or  commerce 
are  injurious  "  to  the  public,  and  therefore  illegal. 

A  grant  of  an  exclusive  right  of  way  and  privi 
lege  of  laying  and  maintaining  tubing  for  transport 
ing  oil  through  a  tract  of  two  thousand  acres,  held 
invalid  as  an  unreasonable  restraint  of  trade  and 
contrary  to  public  policy.  (West  Virginia  vs. 
Company,  46  Am.  Rep.,  527.) 

In  Watson  vs.  The  Companies,  52  How.,  348, 
held  that  a  combination  between  rival  steamboat 


174  ESSAYS  AND  ADDRESSES 

companies,  for  their  "  joint  or  mutual  benefit  or  ac 
count,"  whereby  competition  between  them  was  pre 
vented,  created  a  monopoly  and  so  was  "  contrary 
to  public  policy  and  injurious  to  the  public." 

In  Stanton  vs.  Allen,  5  Denio,  434,  441,  the 
Court  say,  that  "  the  association  being  thus  secured 
against  internal  defection  and  external  encroach 
ment,  and  the  members  having  thrown  their  con 
cerns  in  a  common  stock,  to  derive  an  income  in 
proportion  to  the  number  of  shares  they  held,  and 
not  according  to  their  merit  and  activity  in  busi 
ness,  and  safe  against  the  reduction  of  compensa 
tion  that  would  otherwise  follow  mean  accommoda 
tions  and  want  of  skill  and  attention,  the  public 
interest  must  necessarily  suffer  grievous  loss," 
and  accordingly  the  combination  was  held  to  be 
illegal. 

In  Hooker  vs.  Vanderwater,  4  Denio,  349,  353, 
held  that  "  the  object  of  this  combination  is  to  de 
stroy  competition  "  between  the  parties  to  it ;  that 
"  competition  is  the  life  of  trade,"  that  "  whatever 
destroys  or  even  reduces  competition  in  trade  is  in 
jurious  if  not  fatal  to  it,"  and  that  so  the  combina 
tion  was  a  criminal  conspiracy  under  the  Statute, 
because  injurious  to  trade  and  commerce.  (Peo 
ple  vs.  Fisher,  14  Wend.,  9.) 

In  Hoffman  vs.  Brooks,  1 1  Weekly  Law  Bulletin, 
258,  259,  the  Court,  speaking  of  agreements  to  pre 
vent  competition,  say : 

"  The  presumption  is  always  against  the  validity 
of  such  agreements,  and  certainly  where  they  in- 


ESSAYS  AND  ADDRESSES  175 

elude  all  those  engaged  in  any  business  in  a  large 
city,  or  district,  are  unlimited  in  duration,  and  are 
manifestly  intended,  by  the  surrender  of  individual 
discretion,  by  the  arbitrary  fixing  of  prices,  or  by 
any  of  the  methods  in  which  the  hope  of  gain  makes 
human  ingenuity  so  fruitful,  to  strangle  competition 
outright  and  breed  monopolies,  the  law,  while  it 

may  not  punish,  will  not  enforce  them 

It  is  not  averred  that  the  prices  fixed  are  extortion 
ate,  but  it  is  enough  that  they  are  absolutely  re 
moved  beyond  the  operation  of  every  natural  cause 
of  fluctuation." 

In  Croft  vs.  McConoughy,  79  111.,  346,  350,  the 
Court,  speaking  of  a  combination  to  control  the 
price  of  grain,  says : 

"  So  long  as  competition  was  free,  the  interest  of 
the  public  was  safe.  The  laws  of  trade,  in  con 
nection  with  the  rigor  of  competition,  was  all  the 
guaranty  the  public  required;  but  the  secret  com 
bination  created  by  the  contract  destroyed  all  com 
petition,  and  created  a  monopoly  against  which  the 
public  interest  had  no  protection." 

"  No  one  can  claim  protection  for  the  exclusive 
use  of  a  trade-mark  which  would  practically  give 
him  a  monopoly,  &c.  //  he  would,  the  public  would 
be  injured,  for  competition  would  be  destroyed." 
(Canal  Co.  vs.  Clark,  13  Wall.,  323.) 

In  People  vs.  Stephens,  71  N.  Y.,  545,  the  Court 
says  that : 

"  Arrangements  and  combinations  among  those 
prepared  and  expecting  to  become  bidders  at  auc- 


176          ESSAYS  AND  ADDRESSES 

tion  to  prevent  competition  are  condemned  as  im 
moral  and  against  public  policy." 

In  Marsh  vs.  Russell,  66  N.  Y.,  292,  the  associ 
ation  apparently  was  a  mere  partnership;  but  the 
Court  said  that: 

"If,  however,  the  primary  object  of  the  firm  was 
to  prevent  competition,  it  might  be  considered  as 
against  public  policy,  and  that  it  would  be  '  con 
demned  by  proof  that  it  was  part  of  a  conspiracy  to 
control  prices  or  create  a  monopoly.' ' 

In  Hartford,  &c.,  R.  R.  Co.  vs.  N.  Y.  &  N.  H.  R. 
R.  Co.,  3  Robt,  415,  the  Court  condemned  as  il 
legal  an  agreement  by  a  railroad  company  not  to 
extend  its  line,  saying  that: 

"  The  agreement  was  intended  to  prevent  any 
competition  in  travel;  and  such  competition  it  was 
not  lawful  for  the  parties  to  prevent,  or  attempt  to 
prevent."  (Stewart  vs.  Erie  Co.,  17  Minn.,  372; 
Charlton  vs.  Ry.  Co.,  5  Jurist,  N.  S.,  1096.) 

In  People  vs.  Marx,  99  N.  Y.,  377,  the  Court 
declared  a  formal  statute  unconstitutional  and  void, 
because  it  "  prohibited  an  important  branch  of  in 
dustry  for  the  sole  reason  that  it  competed  with  an 
other  and  might  reduce  the  price  of  an  article  of 
food  for  the  human  race."  (387.) 

In  Alger  vs.  Thacher,  19  Pick.,  51,  Morton,  J., 
enumerates  these  among  the  grounds  that  invalidate 
contracts  in  restraint  of  trade :  "  4.  They  prevent 
competition  and  enhance  prices.  5.  They  expose 
the  public  to  all  evils  of  monopoly.  And  this  is 
especially  applicable  to  wealthy  companies  and 


ESSAYS  AND  ADDRESSES  177 

large  corporations,  who  have  the  means,  unless  re 
strained  by  law,  to  exclude  rivalry,  monopolize  bus 
iness  and  engross  the  market."  (Bishop  vs. 
Palmer,  146  Mass.,  469 ;  Oregon  vs.  Winsor,  20 
Wall.,  64,  67.) 

"  No  one  can  claim  protection  for  the  exclusive 
use  of  a  trade-mark  which  would  practically  give 
him  a  monopoly  in  the  sale  of  any  goods  other  than 
those  produced  by  himself.  If  he  could  the  public 
would  be  injured  rather  than  protected ;  for  compe 
tition  would  be  destroyed."  (Goodyear  Co.  vd. 
Goodyear  Co.,  39  Alb.  Law  Journal  95  (U.  S.  S. 

Ct). 

An  agreement  to  prevent  competition  at  a  public 
sale  is  void,  as  against  public  policy.  (Brisbane  vs. 
Adams,  3  N.  Y.,  129.) 

A  combination  to  advance  the  price  of  stocks  by 
means  of  fictitious  dealings  is  void,  as  against  public 
policy.  (Livermore  vs.  Poor,  5  Hun,  285.) 

An  agreement  not  to  run  a  competing  line  of 
steamboats  is  illegal  and  invalid.  (Wright  vs. 
Rider,  36  Cal.,  342.) 

"  It  is  ultra  vires  and  illegal  for  one  railroad 
company  to  purchase  the  stock  of  another  with  a 
view  to  obtain  a  controlling  interest  in  the  latter, 
and  then  prevent  competition  between  itself  and 
the  other  company."  (Central  R.  R.  vs.  Collins, 
40  Ga.,  582;  Hazelhurst  vs.  Savannah,  &c.,  R.  R. 
Co.,  43  Ga.,  13;  Elkins  vs.  Atlantic,  &c.,  R.  R.  Co., 
36  N.  J.  Eq.,  5. 

"  Property  bought   of   an   opposition   steamship 


1 78  ESSAYS  AND  ADDRESSES 

line,  not  with  a  view  to  employing  it  in  connec 
tion  with  the  business  of  the  road,  but  to  withdraw 
it  from  business,  thereby  preventing  competition,  is 
not  authorized  by  the  charter."  (Morgan  vs. 
Donovan,  58  Ala.,  242.) 

An  agreement  by  one  steamship  company  to  pay 
another  so  much  a  month,  as  long  as  the  former  is 
suffered  to  run  without  opposition,  is  immoral  and 
in  restraint  of  trade.  (Murray  vs.  Vanderbilt,  39 
Barb.,  141.) 

Land  may  not  be  acquired  by  a  railroad  company 
to  prevent  interference  by  competing  lines.  ( R.  R. 
Co.  vs.  Davis,  43  N.  Y.,  137,  146;  Pierce  on  Rail 
roads,  513,  note  2.) 

"  It  is  not  competent  for  a  railroad  company  to 
grant  to  a  single  telegraph  company  the  exclusive 
right  of  establishing  lines  of  telegraph  communica 
tion  along  its  right  of  way.  The  purpose  of  such 
contracts  is  very  plainly  to  cripple  and  prevent  com 
petition,  and  they  are  therefore  void,  as  being  in 
restraint  of  trade  and  contrary  to  public  policy." 
(Western  Union  vs.  R.  R.  Co.,  u  Federal  Re 
porter,  3 ;  Western  Union  vs.  Company,  23  Federal 
Reporter,  12;  Bait.,  &c.,  Co.  vs.  Company,  24  Fed 
eral  Reporter,  319;  Western  Union  vs.  Company, 
65  Ga.,  1 60;  Western  Union  vs.  Company,  29  Am. 
Rep.,  31.) 

Combinations  of  railroads  to  monopolize  freight 
and  carriage  are  illegal.  (Denver  vs.  Company,  15 
Fed.  Rep.,  650.) 

A  municipal  by-law  *in  restraint  of  trade  is  il- 


ESSAYS  AND  ADDRESSES  179 

legal  and  void.  (Hunt  vs.  Wickwir,  10  Wend., 
102.) 

An  agreement  by  lessee  with  lessor  that  his  em 
ployes  shall  trade  only  with  the  lessor  is  unlawful, 
as  tending  to  monopoly.  (Crawford  vs.  Wick,  18 
Ohio  St.,  190.) 

Combinations  to  "  corner "  commodities  are  il 
legal.  (Sampson  vs.  Shaw,  101  Mass.,  145;  Leon 
ard  vs.  Poole,  114  N.  Y.,  371.) 

"  It  may  be  useful  and  lawful  to  restrain  him 
from  trading  in  some  places,  unless  he  intends  a 
monopoly,  which  is  a  crime."  (Parker,  J.,  in 
Mitchell  vs.  Reynolds,  I  P.  Williams,  181.) 

"  If  a  contract  go  to  the  total  restraint  of  trade 
in  the  State  where  it  is  made  it  is  necessarily  void." 
West  Virginia  vs.  Company,  46  Am.  Rep.,  529; 
Dunlap  vs.  Gregory,  10  N.  Y.,  244;  Lawrence  vs. 
Kidder,  10  Barb.,  642-.) 

The  authority  of  the  Mogul  Steamship  Co.  vs. 
McGregor  et  al.  is  weakened  by  the  considerations : 
first,  that  the  decision  was  not  by  a  Court  of  last 
resort,  where  it  may  be  reversed;  second,  the  de 
cision  was  by  a  divided  Court;  third,  the  decision 
turned  upon  the  principles  of  the  common  law, 
whereas  here  a  statute  denounces  combinations  in 
jurious  to  trade  and  commerce;  fourth,  the  decision 
is  contrary  to  the  uniform  current  of  adjudication 
in  this  and  other  States  of  the  Union.  See  criticism 
of  the  decision  by  Sir  Frederick  Pollock,  7  Railway 
&  Corp.  Law  Journal,  61 ;  and  letter  from  the  Brit 
ish  Consul  at  Hankow  on  the  disastrous  effect  of 


180          ESSAYS  AND  ADDRESSES 

the  decision  upon  trade,  6  R.  R.  &  Corp.  Law  Jour 
nal  159. 

In  Chappel  vs.  Brockway,  21  Wend.,  163,  the 
agreement  "  only  secured  the  plaintiff  in  the  exclu 
sive  enjoyment  of  his  business  as  against  a  single 
individual,  while  all  the  world  beside  were  left  at 
full  liberty  to  enter  upon  the  enterprise." 

In  Leslie  vs.  Lorillard,  no  N.  Y.,  519,  there  was 
no  element  of  combination,  and  the  dictum  was 
only  that  contracts  are  not  void,  as  being  in  general 
restraint  of  trade,  when  they  operate  simply  "  to 
prevent  a  party  from  engaging  or  competing  in  the 
same  business."  But  on  page  533  the  Court  says: 
"  Corporations  are  great  engines  for  the  promotion 
of  the  public  convenience  and  for  the  development 
of  public  wealth;  and,  so  long  as  they  are  con 
ducted  for  the  purposes  for  which  organized,  they 
are  a  public  benefit,  but  if  allowed  to  engage,,  with 
out  supervision,  in  subjects  of  enterprise  foreign 
to  their  charters,  or  if  permitted  unrestrainedly  to 
control  and  monopolise  the  avenues  to  that  indus 
try  in  which  they  are  engaged,  they  become  a  public 
menace,  against  which  public  policy  and  statutes 
design  protection" 

In  the  Diamond  Match  Company  vs.  Rober,  106 
N.  Y.,  473,  the  decision  was  that  the  agreement, 
being  only  in  partial  restraint  of  trade,  was  valid  on 
common  law  principles;  but  on  page  483  the  Court 
says,  "  Combinations  between  producers  to  limit  pro 
duction  and  enhance  prices  are,  or  may  be,  unlaw 
ful,  but  they  stand  on  a  different  footing." 


ESSAYS  AND  ADDRESSES  181 

The  Statute  Book  of  the  State  is  replete  with  Acts 
indicative  that  restriction  of  competition  is  contrary 
to  its  policy,  e.  g. :  Laws  1884,  Ch.  252,  Sec.  15 ;  1 1 1 
N.  Y.,  65 ;  Laws  1841,  Ch.  183,  Sec.  16;  Laws  1854, 
Ch.  232;  2  R.  S.  (ist  ed.),  691,  Sec.  8;  7  Edmunds' 
Stats.,  p.  532,  Sec.  9. 

The  monopoly  of  a  copy  and  patent  right  indi 
cates  no  government  policy  hostile  to  competition, 
but  is  an  exceptional  measure  for  the  stimulation  of 
genius  in  authorship  and  invention,  by  guarantee 
ing  it  for  a  period  the  exclusive  benefit  of  its  pro 
duction.  Not  private  aggrandizement,  but  the  pub 
lic  interest  is  the  distinct  object  of  the  regulation. 
(2  Mill  Pol.  Econ.,  548.) 

But,  in  truth,  this  tedious  citation  of  doctrine  and 
decisions  to  exhibit  the  illegality  of  monopoly  com 
binations  is  unnecessary,  since,  for  the  support  of 
the  judgment,  we  are  content  to  stand  upon  the  law 
as  propounded  by  the  learned  counsel  for  defendant 
in  their  argument  below. 

On  page  5-6  of  his  brief  Judge  Daly  concedes 
that  the  effect  of  the  adjudications  is : 

"  That  combinations  are  unlawful,  the  design  and 
effect  of  which  necessarily  is  to  give  the  party  com 
bining  a  monopoly  more  or  less,  for  any  length  of 
time,  of  the  manufacture  or  sale  of  a  commodity,  or 
of  rates  for  transportation,  or  to  regulate  and  con 
trol  the  price  of  commodity,  or  to  control  the  rates 
for  the  transportation  of  persons  or  merchandise,  or 
to  secure  any  pecuniary  or  other  advantage  in 
restraint  of  trade,  which  would  be  injurious  to  the 


182          ESSAYS  AND  ADDRESSES 

community.  The  unlawful  purpose  in  all  these 
cases  was  either  to  raise  prices  or  rates  by  means  of 
the  combination,  or  to  keep  them  under  its  control 
so  that  the  effect  would  be  to  compel  the  public  to 
pay  higher  prices  or  rates  than  they  would  have  to 
pay  but  for  the  combination." 

And  on  page  5  the  distinguished  jurist  explicitly 
admits  that  such  a  combination  is  an  indictable  of 
fense. 

VII 

The  combination  created  by  "  The  Sugar  Refin 
eries  Company  "  deed,  being  injurious  to  trade  and 
commerce,  is  a  criminal  conspiracy,  and  an  indict 
able  offense. 

i. — It  was  so  at  common  law.  (Raymond  vs. 
Leavitt,  46  Mich.,  447;  Rex  vs.  DeBerenger,  3  M. 
and  S.,  67;  Rex  vs.  Hillber,  2  Chitty,  163;  Rex  vs. 
Waddington,  i  East,  143,  167;  Rex  vs.  Sterling,  i 
Keble,  650;  The  King  vs.  Norris,  2  Kenyon,  300; 
Anonymous,  12  Modern,  248;  People  vs.  Melvin,  2 
Wheeler's  Cr.  Cas.,  262 ;  Com.  vs.  Carlisle,  Brightly 
(Pa.),  36;  4  Black.  Com.  158-9;  2  Bish.  Cr.  Law, 
Sec.  231 ;  i  Russ.  Cr.  Law,  168;  3  Inst.,  C.  89.). 

2. — It  is  so  in  the  State  of  New  York,  by  express 
provision  of  statute.  (Penal  Code,  Sec.  168,  Sub. 
6;  Leonard  vs.  Poole,  114  N.  Y.,  371 ;  Pittsburg  vs. 
McMillin,  53  Hun,  67,  69;  People  vs.  Fisher,  14 
Wend.,  9;  Morris  Run  Co.  vs.  Barclay,  68  Pa.  St., 
174;  Hooker  vs.  Vanderwater,  4  Denio,  349; 
Clancy  vs.  Salt  Co.,  62  Barb.,  395;  Barbour's  Cr. 
Law,  245.) 


ESSAYS  AND  ADDRESSES  183 

VIII 

The  character  of  the  combination,  whether  tend 
ing  to  monopoly  and  injurious  to  the  public,  will  be 
determined  by  the  provisions  of  the  instrument  con 
stituting  it,  without  reference  to  its  effects  in  actual 
operation. 

'''  The  clear  tendency  of  such  an  agreement  is  to 
establish  a  monopoly  and  to  destroy  competition  in 
trade.  It  is  no  answer  to  say  that  competition  in 
the  salt  trade  was  not  in  fact  destroyed,  or  that  the 
price  of  the  commodity  was  not  unreasonably  ad 
vanced.  Courts  will  not  stop  to  inquire  as  to  the 
degree  of  injury  inflicted  upon  the  public;  it  is 
enough  to  know  that  the  inevitable  tendency  of  such 
contracts  is  injurious  to  the  public."  (Salt  Co.  vs. 
Guthrie,  35  Ohio  St.,  672.) 

In  Hilton  vs.  Eckersly,  6  Ellis  &  Bl.,  47,  65,  Lord 
Campbell,  C.  J.,  construing  the  monopoly  agreement 
in  question,  said : 

"  I  do  not  think  that  any  averment  is  necessary  as 
to  what  has  been  done  under  it,  or  as  to  any  mis 
chief  which  it  has  actually  produced.  We  are  to 
consider  what  may  be  done  under  it,  and  what  mis 
chief  may  thus  arise." 

In  Clancy  vs.  Salt  Company,  62  Barb,  406,  the 
Court  say: 

"  It  is  impossible  for  any  man,  in  reading  this 
agreement,  not  to  see  that  the  object  of  the  parties 
to  it  was  to  limit  the  production  of  salt  —  to  create 
a  monopoly  —  and  to  increase  the  price  of  salt " ; 


184          ESSAYS  AND  ADDRESSES 

and  upon  the  terms  of  the  agreement  the  Court  held 
it  illegal  on  general  principles  of  law. 

In  Atchison  vs.  Mallon,  43  N.Y.,  149,  per  Folger, 
J. :  "  It  is  not  necessary  for  the  determination  of  this 
case  to  inquire  whether  the  effect  of  the  agreement 
between  the  parties  was  in  fact  detrimental.  The 
true  inquiry  is,  is  it  the  natural  tendency  of  such  an 
agreement  to  injuriously  influence  the  public  inter 
ests?  The  rule  is,  that  agreements,  which,  in  their 
necessary  operation,  tend  to  restrain  natural  rivalry 
and  competition,  and  thus  result  in  disadvantage  to 
the  public,  are  against  the  principles  of  sound  public 
policy,  and  void." 

"  One  result  is  that  the  Chicago  Gas  Trust  Com 
pany  can  control  the  other  companies.  The  ques 
tion  is  not  whether  it  has  attempted  to  exercise  such 
control;  the  law  looks  to  the  general  tendency  of 
the  power  conferred."  (People  vs.  Chicago  Trust, 
supra.;  Richardson  vs.  Crandall,  48  N.  Y.,  348.) 

"  Its  object  and  direct  tendency  is  to  prevent  free 
and  fair  competition,  and  control  prices  throughout 
the  national  domain.  It  is  no  answer  to  say  that 
this  monopoly  has  in  fact  reduced  the  price  of  fric 
tion  matches.  That  policy  may  have  been  neces 
sary  to  crush  competition.  The  fact  exists  that  it 
rests  in  the  discretion  of  this  company  at  any  time 
to  raise  the  price  to  an  exorbitant  degree."  (Rich 
ardson  vs.  Huhl,  7  Railway  &  Corp.  Journal,  97.) 

"  The  combination  or  agreement,  whether  or  not 
in  the  particular  instance  it  has  the  desired  effect, 
is  void.  The  vice  is  the  combination  or  agreement. 


ESSAYS  AND  ADDRESSES  185 

the  practical  evil  effect  of  the  combination  only 
demonstrates  its  character;  but  if  its  object  is  to 
prevent  or  impede  free  and  fair  competition  in 
trade,  and  may  in  fact  have  that  tendency,  it  is  void, 
as  being  against  public  policy."  (Anderson  vs. 
Jett,  41  Alb.  L.  Journal,  104.) 

Indeed,  counsel  for  appellant  concede  that  the 
case  presents  only  a  question  of  law  upon  the  con 
struction  of  the  agreement :  "  Being  a  question  of 
science  and  not  a  question  upon  evidence  as  to  what 
the  actual  effect  has  been,  it  must  be  considered  and 
taken  to  be  a  question  of  law."  (Argument  of  Mr. 
Carter,  p.  21.) 

Nor  will  the  Court  be  deceived  by  the  plausible 
professions  of  purpose  on  the  face  of  the  paper,  but 
will  construe  it  upon  its  manifest  tendency. 

"  The  law  is  not  to  be  hoodwinked  by  colorable 
pretenses."  (Shaw,  C.  J.,  Com.  vs.  Hunt,  38  Am. 
Dec.,  347-8;  Hooker  vs.  Vanderwater,  4  Denio, 
352;  Stanton  vs.  Allen,  5  Denio,  440;  Matter  of 
Jacobs,  98  N.  Y.,  no;  Mugler  vs.  Kansas,  123 
U.  S.,  66 1 ;  Fisher  vs.  Bush,  35  Hun,  643;  Harring 
ton  vs.  Victoria,  &c.,  28  Moak  Eng.  R.,  453.) 

IX 

The  question  then  is,  whether,  by  its  provisions, 
the  trust  agreement  tends  to  the  suppression  of  com 
petition  and  the  enhancement  of  prices.  Counsel 
for  appellant  concede  this  to  be  the  question  for  ad 
judication:  "The  question  which  you  have  to  de 
cide  is,  whether  this  agreement  tends  to  stifle  com- 


1 86          ESSAYS  AND  ADDRESSES 

petition  and  enhance  prices,  and  therefore  to  work 
an  injury  to  trade  and  commerce"  (Mr.  Carter,  p. 
22).  And  on  p.  30  he  says:  "I  deny  that  this 
agreement  does  tend  to  stifle  competition  or  to  en 
hance  prices  to  the  consumer." 

On  the  contrary,  respondents  affirm,  that  the 
"  Sugar  Refineries  Company  "  deed  does  constitute 
a  combination  tending  to  monopoly,  the  prevention 
of  competition,  and  the  enhancement  of  prices. 

I. — To  an  accurate  apprehension  of  the  operation 
and  effect  of  the  instrument  and  the  resulting  com 
bination,  it  is  requisite  to  recur  to  a  few  of  the  laws 
of  economic  science. 

ist.  In  determining  the  laws  of  value,  political 
economy  proceeds  upon  the  postulate  that  compe 
tition  is  free.  (Laughlin,  Elements  of  Pol.  Econ 
omy,  Sec.  94.) 

2d.  The  natural  or  normal  price  of  a  commodity 
is  the  cost  of  its  production,  including  in  such  cost 
the  profit  of  the  producer. 

And,  toward  this  price  the  market  price  of  the 
commodity  constantly  gravitates.  If  the  market 
price  sink  below  the  normal  price,  production  will 
decrease ;  for  men  will  not  continue  to  produce  at  a 
loss,  and  production  will  diminish  until  the  normal 
price  is  restored. 

If  the  market  price  be  above  the  normal  price, 
i.  e.,  the  cost  of  production  plus  the  legitimate 
profit  of  the  producer,  capital,  ever  vigilant  and  ac 
tive  in  quest  of  profitable  investment,  will,  unless 
artificially  arrested,  rush  into  the  production  of  the 


ESSAYS  AND  ADDRESSES  187 

commodity,  until  the  increased  production  restores 
the  normal  price. 

Thus  the  market  price  of  commodities  perpetually 
tends  to  their  normal  price  —  and  this  price  is  the 
highest  the  producer  can  get,  if  competition  be  free, 
(i  Mill's  Principles  of  Political  Economy,  556; 
Laughlin,  Sec.  109;  Cyclopaedia  of  Political  Science, 
"  Competition,"  by  Charles  Coquelin.) 

3d.  The  influence  which  disturbs  the  market  price 
of  a  commodity,  either  raising  it  above,  or  depress 
ing  it  below,  the  normal  price,  is  the  relative  supply 
of  the  commodity.  If  the  supply  be  greater  than 
the  demand  for  the  commodity,  competition  be 
tween  sellers  will  reduce  the  price. 

If  the  supply  be  less  than  the  demand,  competi 
tion  between  buyers  will  increase  the  price. 

"  The  price  of  every  article  of  commerce  is  in 
versely  in  proportion  to  the  supply."  (Chalmers 
on  Political  Economy;  Say's  Pol.  Econ.  b.  ii.,  ch.  i.) 

The  normal  price  prevails  when  the  supply  is  ex 
actly  equivalent  to  the  demand. 

4th.  It  results,  therefore,  that  the  supply  deter 
mines  the  price  of  a  commodity;  and  that  a  control 
of  the  supply  involves  a  control  of  its  price. 

5th.  If,  however,  the  supply  of  a  commodity  be 
in  several  hands,  with  diverse  interests,  competition 
between  them  will  stimulate  production  and  so  di 
minish  the  price.  This  effect,  therefore,  can  only 
be  prevented  by  concentrating  the  supply  within 
the  grasp  of  a  single  control  —  in  other  words,  by 
a  monopoly  of  the  supply. 


1 88  ESSAYS  AND  ADDRESSES 

6th.  In  its  nature  monopoly  is  incompatible  with 
competition  —  necessarily  excludes  it.  "  Wher 
ever  competition  is  not,  monopoly  is."  (2  Mill's 
Principles  of  Political  Economy,  378.) 

The  proposition  is  absurd  that  a  single  producer 
competes  with  himself  in  the  sale  of  his  commodity. 
And  equally  impossible  is  competition  among  many 
producers  whose  capacity  of  production  is  under 
the  control  of  a  single  will  —  among  many  pro 
ducers  reduced  by  combination,  or  unification,  to  a 
single  producer,  and  all  of  whom  profit  by  the  profit 
and  lose  by  the  loss  of  each. 

7th.  Monopoly,  therefore,  by  control  of  the  sup 
ply  and  by  exclusion  of  competition,  is  absolute 
master  of  the  price  of  the  commodity  monopolized. 
And,  under  the  irresistible  impulse  of  self-interest, 
monopoly  will  exact  the  highest  price  which  the 
consumer  of  the  commodity  will  stand.  "  The 
price  of  monopoly  is  upon  every  occasion  the  high 
est  that  can  be  got."  (Wealth  of  Nations,  64;  i 
Mill,  546,  552.) 

"  To  confer  a  monopoly  upon  a  producer  or 
dealer,  or  upon  a  set  of  producers  or  dealers  not  too 
numerous  to  combine,  is  to  give  them  the  power  of 
levying  any  amount  of  taxation  on  the  public,  for 
their  individual  benefit,  which  will  not  make  the 
public  forego  the  use  of  the  commodity."  (2  Mill, 

5470 

"  A  producer  without  competition  may  raise  his 

product  to  what  price  he  will,  even  to  the  extreme 


ESSAYS  AND  ADDRESSES  189 

limit  of  the  consumer's  ability."  (Say,  Pol.  EC., 
b.  ii.,  ch.  i.) 

8th.  But  to  the  monopoly  price  of  a  commodity, 
which  is  a  necessity  of  comfortable  existence,  there 
is  no  assignable  limit,  since,  for  such  a  commodity, 
the  consumer  will  pay  an  exorbitant  price  —  econo 
mizing  by  abstaining  from  less  indispensable  arti 
cles,  (i  Mill,  560.) 

9th.  As  price  depends  upon  the  relation  of  the 
supply  to  the  demand,  monopoly  can  increase  the 
price  of  its  commodity  only  by  reducing  the  supply, 
(i  Mill,  552.) 

ioth.  As  it  is  the  competition  between  sellers  only 
which  reduces  price,  and  as  monopoly  excludes  com 
petition,  a  diminution  in  the  cost  of  production  of 
a  monopoly  article  does  not  lessen  its  price,  (i 
Mill,  558.) 

II. — Viewed  in  the  light  of  these  principles  — 
axioms  in  the  science  of  political  economy  —  the 
agreement  constitutes  a  strict  and  absolute  monop 
oly 

Its  object  to  concentrate  the  control  of  the  pro 
duction  of  refined  sugar  under  the  dominion  of  a 
single  will,  and  that  will  stimulated  by  self-interest 
to  push  the  price  of  the  commodity  to  the  highest 
possible  point.  The  scheme  adopted  for  the  attain 
ment  of  its  object  is  at  once  simple  and  infallibly 
effectual. 

ist.  The  refineries  become  corporate  bodies;  the 
entire  capital  stock  of  each  company  is  transferred 


190  ESSAYS  AND  ADDRESSES 

to  a  board  consisting  of  eleven  members;  the  stock 
so  transferred  is  held  in  "  strict  joint  tenancy,"  so 
as  upon  the  death  or  retirement  of  a  member  to  de 
volve  upon  the  survivors;  the  vote  of  the  majority 
is  equivalent  to  "  the  unanimous  action  of  the 
board."  Thus,  as  sole  owner  of  the  entire  capital 
stock  of  all  the  companies,  the  board  absolutely 
dominates  and  controls  the  action  of  each  and  every 
company  (R.R.  Co.  vs.  Com.,  7  Atlantic  R.,  368). 
Necessarily  every  question  of  corporate  policy  solv 
able  by  shareholders  is  determined  by  this  board, 
for  they  are  the  only  shareholders.  Necessarily 
every  question  of  corporate  policy  and  management 
solvable  by  the  trustees  of  the  corporation  is  deter 
mined  ultimately  by  this  board;  for  they  elect  and 
remove  trustees,  and  no  man  can  be  a  trustee  unless 
they  choose  to  qualify  him  by  a  transfer  of  the 
requisite  stock,  and  no  man  can  be  a  trustee  longer 
than  they  desire,  since,  by  law  to  be  a  trustee  one 
must  be  a  stockholder,  and  trustees  stipulate  on 
request  to  retransfer  their  stock  to  the  board.  Thus 
the  board  controls  at  will  the  production  and  sup 
ply  of  sugar  by  the  confederated  refineries. 

Such,  in  effect,  is  the  admission  of  appellant: 
"  The  Board  as  sole  stockholder  is  to  elect  directors 
of  all  the  corporations,  and  thus  can  control,  as 
stockholders  control,  but  not  otherwise,  the  action 
of  all  the  companies."  (Mr.  Carter,  p.  17.) 

Again  on  page  56 :  "  Suppose  the  board  pass  reso 
lutions  .  .  .  there  is  no  sort  of  doubt  that  the 
corporate  bodies  will  assent;  because  they  are  one 


ESSAYS  AND  ADDRESSES  191 

with  them.  Undoubtedly  these  corporations  can 
agree  upon  the  manner  in  which  they  will  do  busi 
ness  and  the  circumstance  that  competition  is  de 
stroyed  between  them  makes  it  reasonable  and  prob 
able  that  those  resolutions  will  be  carried  out  by 
all  the  members.  ...  A  power  exists  (in  the 
Board)  to  fix  a  price  eventually." 

2d.  In  return  for  the  surrender  of  its  stock  to  the 
board  each  company  receives  trust  certificates  in 
some  proportion  to  the  estimated  value  of  its  prop 
erties;  the  profits  of  the  companies  are  turned  into 
the  board,  and  then  are  distributed  among  the  cer 
tificate  holders  —  exactly  the  same  dividend  being 
allotted  to  each  share.  Thus,  each  company  shar 
ing  the  profits  and  losses  of  every  other,  an  abso 
lute  unity  and  identity  of  interest  is  secured  among 
them.  The  profit  of  one  being  the  gain  of  all  and 
the  loss  of  one  the  loss  of  all,  competition  between 
them  is  absolutely  excluded,  as  absolutely  as  be 
tween  copartners. 

And,  so  appellant  explicitly  concedes :  "  Com 
petition  is  destroyed  between  them,"  i.  e.,  the  com 
panies  (Mr.  Carter,  56.) 

"  It  is  the  necessary  effect,  and  may  be  assumed 
to  be  one  of  the  purposes,"  of  the  combination  (pp. 
28,  54,  18,  17). 

3d.  Having  the  power  to  dictate  the  price,  as 
they  control  the  supply  of  refined  sugar,  the  board 
is  stimulated  by  self-interest  to  extort  the  utmost 
price,  for  its  members  are  all  holders  of  trust  cer 
tificates.  Collectively  they  own  the  greater  part, 


192          ESSAYS  AND  ADDRESSES 

and,  to  insure  their  entire  devotion  to  the  interests 
of  the  "  combine,"  they  are  prohibited,  under  severe 
penalties,  to  trade  in  sugar  on  their  own  account. 

4th.  The  agreement  makes  provision  for  taking 
into  the  "  combine "  every  other  refinery  in  the 
country  (fols.  40,  119),  indeed,  the  "combine" 
already  controls  the  entire  production  of  refined 
sugar  in  the  State  of  New  York,  and  largely  the 
production  in  the  United  States  (fols.  166,  225, 
227). 

Thus  the  agreement  contemplates  and  makes  pro 
vision  for  a  monopoly  of  the  supply  of  sugar  within 
the  United  States. 

And  that  such  is  its  object  is  further  demon 
strated  by  the  interdict  upon  members  of  the 
board  "  to  buy  or  sell  sugar  or  be  interested, 
directly  or  indirectly,  in  the  purchase  or  sale  of 
sugars." 

"  The  control  of  the  four  companies  by  the  ap 
pellee —  an  outside  and  independent  corporation 
—  suppresses  competition  between  them,  and  de 
stroys  their  diversity  of  interest,  and  all  motive  for 
competition.  There  is  thus  built  up  a  virtual  mo 
nopoly."  (People  vs.  Chicago  Gas  Trust  Co., 
supra. ) 

5th.  In  order  to  an  adequate  estimate  of  the  con 
trol  of  the  combination  over  the  price  of  sugar,  and 
so  to  measure  its  capacity  for  mischief,  we  must 
bear  in  mind  that  an  exorbitant  impost  virtually  ex 
cludes  foreign  competition ;  and  that  thus  there  is  no 
limit  to  the  power  of  the  combination  to  plunder  the 


ESSAYS  AND  ADDRESSES  193 

public  but  the  ability  of  the  public  to  pay  the  trib 
ute. 

6th.  Thus  it  is  apparent  upon  the  provisions  of 
its  constitution,  that  the  scheme  contemplates  and 
is  framed  to  compass  two  cardinal  objects :  First, 
the  prevention  of  competition  between  the  refineries 
in  the  combination;  and  this  it  accomplishes  by 
consolidating  their  interests  and  creating  between 
them  a  community  of  profits  and  losses,  and  by 
subjecting  them  to  the  control  of  one  and  the  same 
management,  whereby  an  identity  of  price  in  the 
purchase  of  the  raw  material  and  in  the  sale  of  the 
finished  product,  may  be  fixed  for  each  and  every 
refinery.  Second,  a  monopoly  of  the  production 
and  supply  of  sugar  throughout  the  country  by  the 
absorption  of  all  other  refineries;  for  which  provi 
sion  is  made  by  the  express  terms  of  the  deed  and 
by  the  reservation  of  an  adequate  fund  in  the  treas 
ury  of  the  combination.  To  attain  these  objects  is 
the  obvious  and  only  raison  d'etre  of  the  combina 
tion;  and  in  so  far  as  it  fails  to  realize  either  result, 
it  miscarries  in  its  mission.  That  either  object  suf 
fices  to  condemn  the  combination  as  illegal  —  as,  in 
deed,  a  criminal  conspiracy  against  the  public  inter 
ests —  is  an  incontrovertible  proposition.  Author 
ities,  supra. 


Conceding  that  the  board  "  will  be  governed  by 
the  ordinary  motives  which  influence  human  action, 
and,  so  far  as  it  is  for  their  interest  and  so  far  as 


194          ESSAYS  AND  ADDRESSES 

they  have  the  power,  to  raise  prices,  to  that  extent 
undoubtedly  it  may  be  assumed  that  prices  will  be 
raised"  (Mr.  Carter,  p.  17),  and  admitting  that  it 
is  the  aim  and  effect  of  the  combination  to  prevent 
competition  between  its  members,  appellant  argues 
that  still  the  combination  is  ineffectual  to  maintain 
prices  above  their  normal  rate,  because  it  is  im 
possible  for  the  combination  to  monopolize  the  pro 
duction  of  refined  sugar;  and  by  an  inexorable  law 
of  economic  science,  excessive  profits  will  stimulate 
competition  and  so  reduce  prices  to  their  normal 
level. 

I. — Pausing  upon  the  concession  "  that  by  the 
combination,  competition  among  its  members  is  de 
stroyed,"  this  effect  of  itself  and  alone  condemns 
the  combination  as  illegal;  for  it  is  precisely  such 
combinations,  and  because  of  precisely  such  an  ef 
fect,  that  are  discredited  and  denounced  in  the  ad 
judged  cases  (authorities,  supra).  The  language 
of  Courts  and  writers  is  uniform,  that  if  the  agree 
ment  or  combination  tend  to  monopoly,  if  it  reduce 
or  lessen  competition,  it  is  contrary  to  public  policy 
and  unlawful,  because  operating  pro  tanto  an  arti 
ficial  enhancement  of  price.  In  no  case  or  book  is 
there  an  intimation  even,  that  in  order  to  incur  the 
censure  of  the  law,  the  combination  must  constitute 
a  complete  monopoly,  and  the  agreement  effect  a  to 
tal  extinction  of  competition. 

ist.  The  etymological  is  neither  the  scientific  nor 
legal  sense  of  monopoly,  but  both  political  econo 
mists  and  judges  recognize  and  reprobate  partial 


ESSAYS  AND  ADDRESSES          195 

and  temporary  monopolies,  operating  respectively 
partial  and  temporary  detriment  to  the  public  in 
terest.  Monopoly  comprehends  "  cases  in  which  a 
person  or  a  union  of  persons  cannot  control  more 
than  a  portion  of  the  whole  supply  of  the  commod 
ity,  since  such  a  partial  control  may  render  possible 
and  profitable  an  artificial  rise  in  the  price  of  the 
commodity"  (Sidgwick,  Prin.  Pol.  Econ.,  338, 
188-9,  408-9,  335,  336,  195).  In  a  note  (p.  189) 
this  author  adduces  as  an  instance  of  a  partial  and 
temporary  monopoly,  and  its  ruinous  consequences, 
the  Gold  Ring  (Black  Friday)  of  1869.  So,  Mill, 
Vol.  i,  p.  502:  "  A  trade  may  also  from  the  nature 
of  the  case"  (e.  g.,  Sugar  Refining)  "be  confined 
to  so  few  hands  that  profits  may  admit  of  being  put 
up  by  a  combination  among  the  dealers."  Again 
on  page  501 :"  If  a  business  can  be  advantageously 
carried  on  only  by  a  large  capital "  (e.  g.,  Sugar 
Refining),  "  this,  in  most  countries  so  narrowly  lim 
its  the  class  of  persons  who  can  enter  the  employ 
ment,  that  they  are  enabled  to  keep  up  their  rate  of 
profit  above  the  general  level."  Again :  "  There 
are  but  few  commodities  which  are  naturally  and 
necessarily  limited  in  supply.  But  any  commodity 
whatever  may  be  artificially  so.  ...  Any  com 
modity  may  be  the  subject  of  a  monopoly  "  ( i  Mill's 
Principles  of  Political  Economy,  552,  D.  Applet  on 
&  Co.,  1864). 

And  Laughlin  (Elements  of  Pol.  Econ.,  Sec. 
203)  isays:  "  Other  instances"  (of  partial  monop 
oly)  "  are  to  be  found  in  the  temporary  effects  of 


196          ESSAYS  AND  ADDRESSES 

combinations  and  corners,"  by  which  "  the  supply 
is  limited  in  order  to  cause  the  whole  to  be  taken 
off  at  a  price  independent  of  the  normal  value." 

If  the  bare  possibility  of  a  rival  springing  up  to 
compete  with  the  combination  suffices  to  efface  its 
character  as  a  monopoly,  then  there  can  be  no  mo 
nopoly  except  in  the  rare  and  unimportant  case  of  a 
complete  possession  or  control  of  the  commodity; 
and  as  to  all  the  great  trades  and  industries  there 
can  be  no  monopoly,  and  they  are  beyond  the  pro 
tection  of  the  law  which  prohibits  combinations  to 
prevent  competition  and  enhance  price  —  a  mani 
fest  reductio  ad  absurdum. 

In  none  of  the  cases  condemned  by  the  courts  as 
monopolies,  we  repeat,  was  there  a  complete  and 
entire  control  of  the  commodity  by  the  combina 
tion. 

2d.  Nor  is  a  partial  monopoly,  i.  e.}  a  combina 
tion  controlling  only  a  portion  of  the  supply,  inef 
fectual  for  the  maintenance  of  monopoly  prices 
(citations  supra  from  Sidgwick,  Mill  and  Laughlin). 
Appellant  admits  that  "  this  combination  cannot 
raise  the  price  without  raising  it  for  the  benefit  of 
others,  and  the  outsiders  may  or  may  not  choose 
to  raise  their  prices  accordingly."  (Mr.  Carter, 

P-  32.) 

But  if  "  outsiders  "  elect  to  undersell  the  combi 
nation,  still  their  competition  will  not  affect  the  mo 
nopoly  price  of  the  combination,  unless  they  be  cap 
able  of  a  production  adequate  to  the  supply  of  the 
entire  market. 


ESSAYS  AND  ADDRESSES  197 

So  long  as  the  combination  by  its  control  of  pro 
duction  can  prevent  the  supply  being  equal  to  the 
demand,  it  has  the  power  to  indefinitely  increase 
price.  "If  the  article  is  a  necessary  of  life,  which, 
rather  than  resign,  people  are  willing  to  pay  for  at 
any  price,  a  deficiency  of  one-third  (withheld  by  the 
combination)  may  raise  the  price  to  double,  triple, 
or  quadruple."  (2  Mill,  550,  and  note.) 

"  A  partial  control  of  the  supply  may  render  pos 
sible  an  artificial  rise  in  the  price  of  the  commodity, 
even  though  the  remainder  is  supplied  by  several 
sellers  freely  competing,  if  only  the  proportion  con 
trolled  is  so  large  that  its  withdrawal  would  cause 
a  serious  scarcity,  and  thus  considerably  raise  the 
competitively  determined  value  of  the  uncontrolled 
remainder."  (Sidgwick,  338.) 

The  validity  of  this  ascertained  law  of  economic 
science  is  susceptible  of  easy  illustration  and  proof. 

(a)  Suppose  that  this  combination  controls  two- 
thirds  of  the  product  of  refined  sugar,  and  the  out 
side  competitors  one-third,  and  that  while  the  com 
bination  demands  seven  cents  a  pound  the  competi 
tors  ask  only  five  cents.  Now,  it  is  an  axiom  of 
political  economy  that  there  cannot  be  two  prices 
for  the  same  article  in  the  same  market,  because, 
of  course,  everybody  would  buy  the  commodity 
at  the  lower  price.  It  follows,  therefore,  that 
everybody  would  buy  at  five  cents  of  the  competi 
tors.  But  competition  between  buyers  enhances 
the  price,  and  their  competition  would  ultimately 
raise  the  price  of  the  outside  competitors  to  the 


198  ESSAYS  AND  ADDRESSES 

price  of  the  combination,  unless  those  competitors 
could  supply  the  entire  demand. 

(b)  Suppose,  however,  the  one-third  product  of 
the  outside  competitors  be  taken  at  the  five  cent 
price.  The  demand,  being  yet  unsatisfied,  could 
be  supplied  only  by  the  combination,  which,  having 
now  a  complete  monopoly  of  the  commodity,  could 
extort  a  monopoly  price  —  to  the  extent  even  of 
indemnifying  itself  for  any  loss  it  may  have  sus 
tained  by  the  previous  competition. 

Wherefore,  if  outside  competitors  cannot  supply 
all  the  demand,  they  cannot  prevent  a  monopoly 
price. 

And  this  a  priori  deduction  is  confirmed  by  the 
observed  fact,  that  competitors  of  a  combination 
uniformly  avail  themselves  of  the  monopoly  price 
of  the  combination. 

3d.  At  all  events  this  combination  is,  in  legal 
effect,  a  strict  monopoly,  for  the  evidence  shows 
that  it  controls  absolutely  and  completely  the  sup 
ply  of  sugar  in  the  State  of  New  York,  and  such 
control  in  a  single  State  is  held  by  the  courts  of 
that  State  to  be  a  monopoly.  (Lawrence  vs.  Kid- 
der,  10  Barb.,  642;  Dunlop  vs.  Gregory,  10  N.  Y., 
244;  West  Virginia,  &c.,  vs.  Company,  46  Am. 
Rep.,  529.) 

II. — Advancing  now  to  appellant's  main  argu 
ment,  namely,  that  although  this  combination  ex 
tinguishes  all  competition  among  its  members,  yet 
it  is  impotent  to  control  or  arrest  the  larger  com 
petition  of  capital  invited  by  the  excessive  prices 


ESSAYS  AND  ADDRESSES  199 

of  the  combination  to  invest  in  the  production  of 
sugar,  and  that  so  increased  production  will  reduce 
price  to  its  normal  level,  we  answer: 

ist.  That  the  argument  postulates  free  competi 
tion  of  capital  with  capital  and  of  labor  with  labor. 
Whereas,  the  utmost  that  can  be  affirmed  in  support 
of  the  argument  is,  that  it  i.s  the  tendency  of  labor 
to  seek  the  highest  wages,  and  of  capital  the  largest 
profits;  and  so  that  it  is  the  tendency  of  economic 
forces  to  maintain  an  equilibrium  of  price.  The 
fallacy  of  appellant's  argument  lurks  in  the  ambi 
guity  of  the  word  tendency;  which  means  either  the 
operation  of  causes  that  will  produce  a  result,  or 
the  operation  of  causes  that  may  produce  a  result, 
if  not  arrested  or  imlpeded  by  counteracting  forces. 
(Whateley's  Lectures  on  Pol.  Econ.,  231.) 

In  the  latter  sense  appellant's  proposition  is  true; 
in  the  former  it  is  false.  In  point  of  fact  many 
causes  operate  to  hinder  the  free  competition  of 
labor  and  of  capital  —  a  fact  attested  conclusively 
by  the  prevalence  of  different  rates  of  wages  and  of 
different  rates  of  interest  (Laughlin,  Sees.  124- 
125).  Hence,  the  utmost  we  may  predicate  of  the 
competition  of  capital  in  redressing  the  balance  of 
prices  is,  that  such  is  its  tendency,  and  possibly  its 
ultimate  result.  "  After  due  allowance  is  made  for 
these  various  causes  of  inequality,  difference  in  the 
risk  and  agreeableness  of  different  employments, 
and  natural  or  artificial  monopolies,  the  rate  of 
profit  on  capital  in  all  employments  tends  to  an 
equality"  (i  Mill,  502).  Again,  "But  in  all 


200  ESSAYS  AND  ADDRESSES 

things  which  admit  of  indefinite  multiplication,  de 
mand  and  supply  only  determine  the  perturbations 
of  value  during  a  period  which  cannot  exceed  the 
length  of  time  necessary  for  altering  the  supply  " 
(id.,  561).  Mr.  Carter  himself  says:  "All  the 
combinations  in  the  world  for  the  manufacture  of 
refined  sugar  could  never  permanently  keep  up  the 
price,"  etc.  (p.  39),  and  that  the  reduction  of  price 
"  may  not  occur  in  one  month  or  two  months  or 
three  months,  and  a  temporary  rise  in  price  may  be 
brought  about  in  this  manner,"  i.  e.,  by  the  combi 
nation  (p.  33).  So  that  assuming  a  free  migration 
of  capital  in  quest  of  profitable  investment,  there  is 
still  a  complete  absence  of  competition  with  the 
combination,  for  the  long  period  during  which  out 
side  refineries  are  building  and  equipping  and  get 
ting  their  product  upon  the  market;  and  of  what 
havoc  even  a  temporary  monopoly  is  capable,  we 
again  adduce  the  Gold  Ring  of  1869  as  a  memora 
ble  and  admonitory  instance. 

And  then,  if  after  a  prolonged  exaction  of  arbi 
trary  and  exorbitant  prices,  the  combination  ulti 
mately  collapses,  under  the  strain  of  competition, 
the  widespread  disturbance  of  the  market  and  finan 
cial  ruin,  exhibit  another  set  of  evils  engendered  by 
the  system  —  as  witness  the  recent  explosion  of  the 
copper  syndicate. 

2d.  Even  after  outside  refineries  shall  be  estab 
lished,  equipped  and  in  operation,  it  by  no  means  fol 
lows  that  they  will  compete  with  the  combination 
in  the  reduction  of  prices  (supra),  and  if  they  do, 


ESSAYS  AND  ADDRESSES          201 

experience,  notably  of  the  Standard  Oil  Company, 
demonstrates  that  nascent  rivals  are  invariably 
crushed  by  established  and  powerful  combinations, 
which,  for  that  purpose,  reduce  prices  until  their 
competitor  is  driven  from  the  field,  and  then  in 
demnify  themselves  by  aggravated  plunder  of  the 
public. 

In  enumerating  the  classes  of  monopolies,  the 
Cyclopaedia  of  Political  Science,  etc.,  vol.  II.,  p.  891, 
distinguishes:  ist.  "  The  engrossing  of  a  business 
by  a  combination  of  individuals,  who  by  means  of 
the  vastness  of  the  capital  invested,  drive  out  com 
petitors,  not  by  a  superior  service,  or  a  lower  nor 
mal  price,  which  is  the  operation  of  the  natural  law 
of  competition,  but  by  losses  deliberately  incurred 
which  they  can  bear  and  the  competitor  cannot,  to 
be  recouped  by  excessive  charges  when  the  com 
petitor  is  made  harmless. " 

XI 

The  Sugar  Refineries  combination  is  not  justified 
by  the  economic  law  of  "  Large  Production " 
(Laughlin,  Sec.  50),  i.  e.,  by  the  effect  of  aggre 
gated  capital  and  concentrated  management,  in  re 
ducing  prices. 

ist.  The  combination  does  not  bring  a  single  ad 
ditional  dollar  to  the  production  of  sugar.  The 
principle  of  division  of  labor  is  not  more  available 
and  operative  than  before  the  combination. 
Neither  is  there  any  aggregation  of  capital  or  con 
centration  of  management;  for,  by  express  provi- 


202'          ESSAYS  AND  ADDRESSES 

sion  of  the  trust  deed,  "  the  several  companies, 
parties  to  this  agreement,  shall  maintain  their  sep 
arate  organization  and  each  shall  carry  on  and  con 
duct  its  own  business."  So  each  company  main 
tains  its  own  complement  of  salaried  officers  and 
servants,  and,  subject  to  the  control  of  the  board, 
directs  its  own  affairs,  and  hence  there  is  no  econo 
mizing  of  expenditure.  The  cost  of  running  each 
company  is  precisely  what  it  was  before  the  com 
bination,  and  the  business  of  each  is  still  under  a 
separate  and  several  management.  And  the  capital 
of  each  company  remains  in  its  own  exchequer; 
only  the  certificates,  representatives  of  that  capital, 
are  deposited  with  the  board,  in  order  to  collect 
there  the  voting  power  of  the  companies. 

2d.  Such  establishments  as  Macy's,  Wana- 
maker's,  etc.,  have  no  control  of  the  production  of 
commodities,  and  so  cannot  enhance  prices;  but  are 
concerned  only  in  the  distribution  of  commodities, 
and  so  by  the  greater  capital  they  employ,  by  so 
much  increase  the  volume  of  supply,  and  by  as 
much  as  they  increase  the  volume  of  supply,  by  so 
much  diminish  prices.  Their  only  chance  of  suc 
cess  is  in  underselling  small  dealers,  and  this  they 
are  enabled  to  do  by  the  great  aggregate  income 
they  realize  from  small  profit  on  immense  capital. 
Thus  such  establishments  are  the  very  opposite  of 
monopoly;  for  while  they  live  only  by  extending 
the  area  of  demand  and  consumption  to  which  a 
reduction  of  price  is  indispensable,  monopoly  thrives 
only  upon  a  diminution  of  supply,  by  which  ex- 


ESSAYS  AND  ADDRESSES  203 

pedient  only  can  it  command  exaggerated  prices. 
Demand  and  consumption  are  extended  only  by  a 
decrease  of  price;  but  the  end  and  aim  of  monopoly 
is  increase  of  price,  and  this  it  surely  accomplishes 
by  curtailment  of  supply,  instead  of  useless  expendi 
ture  in  augmented  production,  and  the  hazardous 
experiment  of  cheap  prices. 

If  Macy  and  Wanamaker  had  a  monopoly  of  com 
modities,  they  would  exact  their  own  prices;  but 
now  they  can  sell  only  by  underbidding  competitors. 

XII 

The  example  of  the  Standard  Oil  Company,  ad 
duced  as  an  instance  of  the  reduction  of  price  by 
combination,  involves  the  fallacy  of  the  petitio 
principii,  in  assuming  the  very  proposition  to  be 
proved,  namely,  that  reduction  of  price  was  a  con 
sequence  of  the  combination.  True,  the  price  of 
refined  oil  is  less  than  before  the  existence  of  the 
combination;  but  non  liquet  that  the  combination 
was  the  cause  of  the  reduction,  since  other  causes 
adequate  to  the  effect  were  in  full  operation,  e.  g., 
increase  of  the  raw  material,  diminution  of  the  cost 
of  production  by  improved  processes  and  machinery, 
etc.  Non  constat,  but  that  under  free  competition 
the  price  would  have  been  still  less;  as  probably  it 
would  have  been,  since  all  experience  attests  the 
efficacy  of  competition  in  the  reduction  of  price. 
Indeed,  we  have  the  assurance  of  the  highest  au 
thority  that  the  fall  in  the  price  of  refined  oil  was 
not  because,  but  in  spite  of  the  Standard  combina 
tion. 


204          ESSAYS  AND  ADDRESSES 

"  Newspaper  organs  of  monopoly  tell  us  to  ad 
mire  the  magnanimity  of  the  Standard  Oil  people, 
who  have  reduced  prices.  This  is  a  false  state 
ment.  Prices  have  fallen  in  spite  of  the  most 
strenuous  efforts  to  keep  them  up.  .  .  .  They 
have  always  held  back  vast  quantities  of  oil  to  main 
tain  prices,  and  rumors  reach  us  of  a  determined 
effort  to  diminish  production."  (Professor  Ely, 
Problems  of  To-day,  p.  144.) 


XIII 


The  sugar  combination  finds  no  justification  or 
support  in  the  right  accorded  by  law  (Penal  Code, 
Sec.  170)  to  associations  of  labor  for  the  enhance 
ment  of  wages. 

The  mischief  of  over-supply  and  inadequate  values 
in  commodities,  the  producer  can  and  will  correct 
by  a  reduced  supply,  thus  restoring  the  equilibrium 
of  prices.  But  sentient  labor  cannot  withdraw 
from  the  marktt,  it  must  eat  or  die ;  and,  indeed,  in 
proportion  to  the  inadequacy  of  wages,  is  the  in 
crease  in  the  supply  of  labor,  for  the  deficiency  of 
wages  can  be  compensated  only  by  longer  work  and 
conscripting  the  young  and  the  old  for  the  support 
of  the  family  —  the  less  the  pay,  the  more  the  work 
necessary  for  subsistence.  Then,  too,  since  the 
labor  class  constitute  the  mass  of  society,  and  since 
the  well-being  of  society  depends  upon  the  physical, 
intellectual  and  moral  condition  of  the  mass  of  its 
constituents,  the  law  secures  to  labor  the  right  of 


ESSAYS  AND  ADDRESSES          205 

recourse   to   the   only  expedient,    combination,   by 
which  its  condition  may  be  bettered. 

XIV 

Nor  is  the  case  similar  to  the  pooling  arrange 
ments  between  railroad  carriers  (which,  however, 
are  illegal,  authorities  supra),  for  there  the  evil  of 
monopoly  is  checked  by  the  power  of  the  State  to 
regulate  prices.  (Munn  vs.  Illinois,  94  U.  S.,  113; 
R.R.  Commission  Cases,  116  U.  S.,  307;  Dow  vs. 
Biedelman,  125  U.  S.,  680;  People  vs.  R.R.,  70 
N.  Y.,  569.) 

xv 

Defendant's  counsel  assume  that  here  was  a  sale 
of  defendant's  stock  to  "  The  Sugar  Refineries 
Company."  The  relevancy  of  the  point  to  the  argu 
ment  is  not  apparent ;  but  indisputably  the  transac 
tion  has  no  feature  of  a  sale. 

ist.  A  sale  implies  a  price  for  the  thing  bought; 
but  here  was  no  price  paid  or  promised;  and  the 
trust  certificates  exchanged  for  the  stock  are  only 
evidence  of  the  holder's  right  to  the  stock  deposited 
with  the  board,  and  to  dividends  on  it. 

2d.  The  deed  provides  in  terms  that  the  stock 
shall  be  held  by  the  board  "  as  trustees/' 

3d.  If  the  stock  were  sold  to  the  board,  it  would 
be  the  property  of  the  board,  and  the  profits,  as  an 
incident  of  that  property,  would  belong  to  the 
board ;  but  by  the  provisions  of  the  deed  these  prof 
its  are  to  be  distributed  in  the  form  of  dividends  to 


206  ESSAYS  AND  ADDRESSES 

the  holders  of  the  certificates  exchanged  for  the 
stock. 

4th.  If  the  corporate  stock  be  sold  to  the  board 
for  the  price  of  its  certificates,  then  upon  the  dis 
solution  of  a  corporation  its  assets  would  be  the 
property  of  the  board  —  a  result  which  the  stock 
holders  in  the  corporation  would  be  the  last  to  ac 
cept. 

5th.  No  rational  mind  can  draw  any  other  con 
clusion  than  that  the  corporate  stock  was  transferred 
to  the  board  for  the  sole  purpose  of  imparting  to 
the  board  the  voting  power  of  the  stockholders  — 
in  other  words  the  control  of  the  corporation. 

XVI 

The  fact  that  the  arrangement  imposes  a  copart 
nership  liability  on  the  associated  corporations,  is 
ineffectual  to  efface  the  illegality  of  the  combina 
tion. 

The  assimilation  of  such  a  scheme  to  a  copartner 
ship  was  attempted  in  Stanton  vs.  Allen,  5  Denio, 
442;  but  the  Court  dismissed  the  argument  sum 
marily  with  the  remark,  that  "  no  one  can  be  de 
ceived  by  any  supposed  analogy  between  the  prin 
ciple  of  uniformity  of  price  among  members  of  an 
ordinary  business  firm,  and  the  same  thing  in  a  con 
federacy  formed  for  no  other  purpose  or  use  than 
to  bring  it  about." 

XVII 

Another  argument  by  Mr.  Carter  is  that  the  sev 
eral  interests  implicated  in  the  combination  might 


ESSAYS  AND  ADDRESSES          207 

legally  be  consolidated  in  a  single  corporation;  and 
that  hence  the  present  confederacy  of  corporations 
is  invulnerable  to  attack. 

But  — 

ist.  It  is  no  defense  of  the  system  assailed  that 
another  scheme  constructed  on  a  different  principle 
might  be  legally  unimpeachable.  The  argument 
proceeds  on  a  false  analogy;  and  it  is  no  justifica 
tion  of  one  thing  to  show  that  another  and  different 
thing  might  be  legal  and  legitimate. 

2d.  The  argument  involves  not  only  a  non- 
sequitur,  but  the  assumption  of  a  false  premise, 
namely,  that  for  the  purpose  and  to  the  effect  of  se 
curing  a  monopoly  of  the  sugar  refinery  business, 
all  the  sugar  refining  interests  of  the  country  might 
legally  be  concentrated  in  a  single  company. 

Any  combination  to  do  an  act  injurious  to  trade 
or  commerce  is  a  criminal  conspiracy  (Penal  Code, 
Sec.  1 68,  Sub.  6),  and  to  prevent  or  restrict  com 
petition  is  injurious  to  trade  and  commerce  (Leon 
ard  vs.  Poole,  114  N.  Y.,  371 ;  Hooker  vs.  Vander- 
water,  4  Denio,  353 ;  People  vs.  Fisher,  14  Wend., 
19,  and  authorities  supra.)  An  otherwise  lawful 
combination  becomes  a  crime  if  its  intent  be  to  form 
a  monopoly  (Parker,  C.  J.,  in  Mitchell  vs.  Rey 
nolds,  i  P.  Williams,  181).  Hence,  it  is  an  un 
warrantable  hypothesis  to  assume  that  the  right  of 
incorporation  for  legitimate  business,  involves  the 
right  to  incorporate  for  an  unlawful  purpose. 
(Clancy  vs.  Salt  Company,  62  Barb.,  395;  Endow 
ment  Fund  vs.  Sutchwell,  71  N.  C.,  in ;  8  Am.  St. 


208          ESSAYS  AND  ADDRESSES 

R.,  192,  note  by  Freeman;  Richardson  vs.  Buhl,  7 
R.R.  &  Corporation  Law  Journal,  89;  People  vs. 
Chicago  Gas  Trust,  41  Alb.  Law  J.,  68.) 

XVIII 

It  is  no  answer  to  the  criticism  of  the  sugar 
"  combine  "  to  say,  that  a  man  may  do  what  he 
pleases  with  his  own,  that  the  stock  in  the  several 
companies  is  the  property  of  the  shareholders,  and 
that  they  may  dispose  of  it  at  their  pleasure. 

For  it  is  not  a  true  proposition  of  law  that  a  man 
may  do  as  he  chooses  with  his  own,  the  fundamen 
tal  principle  is  rather,  sic  utere  tuo  ut  alienum  non 
Iced&s,  and  every  man's  property  is  subject  to  the 
restriction  that  he  shall  not  use  it  to  the  detriment 
of  society.  Solus  populi  suprema  lex.  It  is  upon 
this  principle  that  the  law  condemns  and  confiscates 
property  as  a  nuisance;  it  is  by  this  principle  that 
the  law  restrains  in  so  many  particulars  the  right 
of  a  man  to  contract  (Stanton  vs.  Allen,  5  Denio, 
441),  especially  forbidding  him  so  to  contract  as  to 
create  monopoly.  Authorities,  supra. 

"  Every  right,  from  absolute  ownership  in  prop 
erty  down  to  a  mere  easement,  is  purchased  and 
holden  subject  to  the  restriction  that  it  shall  be  so 
exercised  as  not  to  injure  others."  (Coates  vs. 
Mayor,  7  Cowen,  585.) 

XIX 

It  is  perfectly  obvious  that  the  scheme  under  dis 
cussion  does  not  present  a  case  of  mere  partial  re 
straint  of  trade,  for  the  benefit  of  the  vendor  of  a 


ESSAYS  AND  ADDRESSES          209 

commodity  or  business  (Diamond  Match  Co.  vs. 
Roeber,  106  N.  Y.,  473;  Leslie  vs.  Lorillard,  no 
N.  Y.,  533;  Watertown  vs.  Pool,  51  Hun,  157),  but 
is,  in  purpose  and  effect,  a  combination  of  producers 
to  monopolize  and  control  the  market,  and  hence 
cannot  be  vindicated  upon  the  principle  of  those 
decisions. 

xx 

The  scheme  of  combination  constituted  by  the 
Sugar  Refineries  Company  deed  creates  a  monopoly 
in  the  strictest  and  most  absolute  sense,  i.  e.,  a  single 
seller.  It  concentrates  the  power  of  production 
and  supply  in  a  single  body,  actuated  by  a  single 
and  common  interest;  it  excludes  the  possibility  of 
competition,  and  it  tends  inevitably  to  the  enhance 
ment  of  price.  Thus  the  combination  is  illegal 
and  criminal ;  and  since  "  a  corporation  has  no 
authority  to  do  acts  which  by  the  public  law  are  in 
dictable  "  (State  vs.  Krebs,  64  N.  C,  604)  ;  since 
acts  ultra  vires,  i.  e.,  abuse  of  corporate  powers 
(Code  Civ.  Pro.,  Sec.  1798,  Sub.  2),  and  "a  vio 
lation  of  any  provision  of  law  (id.)  are  express 
statutory  grounds  of  forfeiture,  it  results  that  the 
verdict  was  well  directed  against  defendant. 

And  that  the  intervention  of  the  Courts  is  chal 
lenged  by  the  urgency  of  the  public  interest,  is  evi 
dent  from  the  mischievous  consequences  of  trust 
combinations. 

"  If  it  is  to  be  the  future  order  of  things  that  each 
of  the  industries  is  to  be  in  charge  of  one  trust,  and 


210  ESSAYS  AND  ADDRESSES 

competition     thereby     excluded,     what     follows? 
Among  other  things  such  as  these : 

(i)  The  creation  of  as  many  distinct  dominating 
classes  as  we  have  industries,  to  whom  all  other 
interests  will  be  selfishly  subject  and  subordinated. 
(2)  A  domination  of  capital  over  labor  which  would 
leave  to  the  workman,  not  the  highest  wages  he 
could  get  from  among  a  host  of  competitors  for  his 
labor,  but  just  what  the  one  monopolist  employer 
may  arbitrarily  choose  to  give  him.  (3)  The  dis 
couragement  of  the  production  of  raw  materials 
through  the  constant  forcing  down  of  their  price 
that  comes  by  confining  the  demand  to  one  pur 
chaser.  (4)  The  discouragement  of  invention  by 
restricting  production  to  one  mammoth  corporation ; 
who,  with  no  fear  of  a  competitor  before  their  eyes, 
would  be  less  necessitated  to  keep  up  with  the  march 
of  discovery  and  little  disposed  to  prematurely 
destroy  old  plant  for  better.  (5)  The  creation  of 
fierce  antagonisms  between  trusts  whose  interests 
might  be  conflicting,  causing  interruptions  to  busi 
ness  far  more  serious  than  those  we  suffer  from  the 
worst  forms  of  strike.  (6)  The  subjecting  of  the 
whole  distributing  trade  to  just  such  conditions  and 
compensations  as  the  monopolist  producer  may 
choose  to  dictate,  with  no  possibility  of  recourse  or 
redress.  (7)  The  old  plant  of  our  industries  (which 
should  have  been  allowed  to  give  place  to  new  in  a 
natural  way),  having  been  absorbed  into  the  monop 
olies,  will  have  to  do  duty  with  the  improved,  and 
will  thus  be  conserved  to  act  as  a  drag  upon  the 


ESSAYS  AND  ADDRESSES  211 

efficiency  and  economy  of  production.  (8)  The  in 
troduction  of  very  serious  changes  in  the  relations 
of  banking  to  commerce ;  for,  under  the  trust  system, 
the  banks  would  have  to  carry  a  whole  industry  in 
one  solid  block,  and  not,  as  at  present,  divided  among 
a  wide  diversity  of  individual  firms.  (9)  The  own 
ing  and  control  of  the  banks,  in  a  large  measure,  by 
the  monopolies,  in  order  to  protect  their  own  mam 
moth  interests  and  also  to  hold  in  the  more  complete 
subjection  such  other  interests  as  might  not  relish 
their  industrial  domination.  (19)  The  creation  of 
an  industrial  aristocracy  of  immense  power,  which 
would  foster  class  hostilities,  embitter  politics  and 
endanger  the  Republic." — New  York  Daily  Com 
mercial  Bulletin,  ist  April,  1889. 

XXI 

Defendant  corporation  is  party  to  the  Sugar  Re 
fineries  Company  deed. 

i. — In  September,  1887,  George  H.  Moller,  then 
secretary  of  the  defendant  company,  signed  the  deed 
thus :  "  North  River  Sugar  Refining  Company,  Geo. 
H.  Moller,  Secretary"  (folios  98-99);  and  he  so 
signed  under  and  pursuant  to  a  resolution  of  a  meet 
ing  comprising  all  the  stockholders  and  trustees  of 
the  company  (folio  99),  declaring  it  to  be  "  for  the 
interest  of  the  North  River  Sugar  Refining  Com 
pany  to  participate  in  the  consolidation "  of  the 
Sugar  Refineries  (folio  103),  and  authorizing  "the 
President  and  Secretary  ...  to  sign  all  con 
tracts,  agreements  and  papers  which  the  above  com- 


212'          ESSAYS  AND  ADDRESSES 

mittee  may  make  in  relation  to  the  said  consolida 
tion  "  (folio  104)  — i.  e.,  the  combination  in  ques 
tion.  And  he  so  signed  in  the  belief  that  he  had 
authority  to  sign  from  the  stockholders  and  trustees 
(folio  98). 

Plainly,  if  Moller  had  authority  to  execute  the 
instrument  in  behalf  of  the  company,  the  subsequent 
resolution  of  November  4th,  1887,  purporting  to 
revoke  that  authority,  was  ineffectual  to  cancel  an 
execution  already  consummated. 

The  preamble  to  the  resolution  of  November  4th, 
declared  that  "  it  is  deemed  inexpedient  at  the 
present  time  to  enter  into  any  such  consolidation  " 
(folio  1 08).  Thus,  the  resolution  to  go  into  the 
combination  was  not  rescinded,  but  was  only  post 
poned  in  the  time  and  modified  in  the  mode  of  execu 
tion.  So,  at  a  meeting  of  stockholders  of  the  com 
pany,  held  25th  November,  1887,  it  was  recited  that 
whereas  Moller  had  signed  the  deed  under  the  be 
lief  that  he  was  authorized  so  to  do,  providing  for 
the  delivery  of  the  stock  of  the  company  to  trustees 
therein  named  (folio  119)  ;  and  whereas,  "  John  E. 
Searles,  Jr.,  had  offered  to  purchase  the  capital 
stock  of  said  North  River  Sugar  Refining  Company 
for  the  sum  of  $325,000,"  it  was  "  Resolved,  that 
Peter  Moller,  Jr.,  George  H.  Moller  and  Gerd  Mar 
tens  be  and  they  are  hereby  appointed  a  committee 
to  deliver  said  stock  to  John  E.  Searles,  Jr.  (mem 
ber,  secretary  and  treasurer  of  the  board),  or  at 
his  request  to  John  E.  Parsons,  John  R.  Dos  Passes 
and  Franklin  Bartlett,  trustees"  (folio  120),  ap- 


ESSAYS  AND  ADDRESSES          213 

pointed  by  the  board  to  receive  the  stock  from  the 
individual  stockholders ;  so  as  to  make  "  certain  that 
the  stockholders  of  all  corporations  had  assented," 
before  the  issue  of  certificates  for  the  stock  (folio 
196) ;  and  then  to  transfer  the  stock  to  the  board 
(folio  161). 

Accordingly,  all  the  stock  of  the  North  River 
Sugar  Refining  Company  was  transferred,  by  blank 
assignments,  to  John  E.  Searles,  Jr.  (folio  115), 
who  purchased  for  the  Sugar  Refineries  Company 
(folio  161)  ;  he  transferred  it  to  the  named  trustees, 
and  they  transferred  it  to  the  Sugar  Refineries  Com 
pany  (folios  161,  163). 

Obviously,  the  resolution  of  the  25th  of  Novem 
ber,  coupled  with  the  acts  done  pursuant  to  it,  was 
a  ratification  of  George  H.  Holler's  execution  of  the 
deed  —  namely,  he  had  agreed  for  the  company 
that  it  should  become  a  party  to  the  consolidation; 
and  the  resolution  and  consequent  action  of  the 
company  made  it  a  party  to  the  consolidation. 
Every  right  and  every  obligation  conferred  or  im 
posed  upon  the  company  or  its  stockholders  by  Hol 
ler's  execution  became,  in  fact,  the  right  and  obliga 
tion  of  the  company  or  its  stockholders — they  are 
both  in  precisely  the  same  situation  they  would  have 
been  in  under  Holler's  execution  —  and  the  deed 
still  bears  the  signature  "  North  River  Sugar  Re 
fining  Company,  George  H.  Holler,  Secretary " ; 
the  company  is  still  a  party  to  the  deed. 

2. — 'Upon  the  supposition  that  Holler's  signature 
was  a  nullity,  still  one  may  be  a  party  to  an  instru- 


214  ESSAYS  AND  ADDRESSES 

ment  without  a  formal,  technical  execution  of  it  — 
without  signing  it.  It  is  common  learning  that  a 
grantee  in  a  conveyance  becomes  a  party  to  it  and  is 
bound  by  its  covenants,  by  taking  the  benefit  of  it 
and  without  executing  it.  'Here,  the  North  River 
Sugar  Refining  Company  or  its  shareholders  — 
whoever  they  be — have  done  what  the  deed  re 
quired  of  them,  i.  e.,  transferred  their  stock  to  the 
board  (folios  139,  139,  163,  139,  155),  have  got 
what  the  deed  guaranteed  to  them,  namely,  the  cer 
tificates  of  the  Sugar  Refining  Company  (folios  138, 
J55»  X63).  This  board,  the  Sugar  Refineries  Com 
pany,  was  constituted  and  created  under  and  pur 
suant  to  the  deed  (folios  138).  The  stock  was 
transferred  to  the  board  in  conformity  with  the 
terms  of  the  deed  (folios  142,  154).  Certificates 
for  the  North  River  Company's  stock  were  to  be 
issued  for  "  the  amount  specified  in  the  deed " 
(folio  154),  and  were  received  from  the  board 
(folio  159).  The  board  holds  the  North  River 
Company  stock  "  subject  to  the  purposes  set  forth 
in  the  deed  "  (folio  158).  The  fifteen  per  cent  re 
served  out  of  the  $700,000  certificates  allotted  to 
the  North  River  Company,  was  so  reserved  under 
the  deed  (folios  228,  237,  239) — "the  original 
agreement  with  the  North  River  Company  "  (folios 
286,  242). 

Finally,  the  North  River  Company,  or  its  stock 
holders,  have  been  awarded  the  dividend  stipulated 
by  the  deed  (fol.  201). 

Beyond  all  controversy,  the  North  River  Com- 


ESSAYS  AND  ADDRESSES  215 

pany,  or  its  stockholders,  have  acted  upon  the  pro 
visions  of  the  deed,  have  received  and  enjoy  the 
benefits  of  it,  and  so  are  parties  to  it;  if  not  upon 
the  original  execution  of  Moller,  then  as  effectually 
by  subsequent  adoption  and  ratification.  (The 
Sheldon  Company  vs.  the  Eickmeyer  Co.,  90  N. 
Y.,  607;  President,  &c.,  vs.  R.  R.  Co.,  7  Lans.,  240.) 

XXII 

But  the  controlling  question  of  fact  is,  not 
whether  the  defendant  was  a  party  to  the  deed,  but 
whether  it  is  in  the  combination  ?  The  allegation 
of  the  complaint  is  that,  "  said  agreement  con 
stitutes  a  combination  to  do  an  act  injurious  to  trade 
and  commerce,  to  zvhich  combination  defendant  is 
a  party"  (folio  43). 

I — By  the  essential  principle  and  policy  of  the 
scheme,  the  corporations  are  parties  to  the  com 
bination,  thus: 

ist.     The  board  is  created  by  the  corporations. 

2d.  The  deed  explicitly  provides  that  none  but 
corporations  can  be  parties  to  the  combination. 

3d.  The  deed  recites,  "  The  several  corporations, 
parties  to  this  agreement''  etc. 

4th.  "  The  several  corporations  shall  be  entitled 
to  the  shares  "of  trust  stock. 

5th.  Provision  is  made  for  the  acquisition  of 
other  refineries  "  to  become  parties  to  this  deed." 

6th.  The  profits  of  each  corporation  is  to  be  paid 
over  by  it  to  the  board,  etc. 


216  ESSAYS  AND  ADDRESSES 

7th.  The  corporations  stipulate  for  the  transfer 
of  their  stock. 

8th.  Each  corporation  agrees  to  maintain  its 
separate  organization,  etc. 

9th.  Funds  for  the  board  are  to  be  raised  "  by 
mortgage  to  be  made  by  the  corporations  on  their 
property." 

loth.  The  profits  of  the  corporations,  before 
declaration  of  a  dividend,  are  to  be  turned  into  the 
board. 

nth.  Nowhere  does  the  deed  recognize  stock 
holders  as  parties  to  the  instrument  or  constituents 
of  the  company;  but  on  the  contrary,  the  essential 
principle  of  the  scheme  is,  that  it  is  the  creation  of 
the  corporations. 

Obviously  and  undisputably,  the  corporations,  as 
such,  are  the  constituents  of  the  combination. 

II — Defendant  might  become  a  party  to  the  com 
bination  without  being  technically  and  formally  a 
party  to  the  deed. 

The  agreement  created  and  constituted  the  com 
bination.  The  combination  is  the  effect  of  the 
agreement.  An  agreement  to  form  a  combination  is 
one  thing;  the  consummation  of  the  combination  is 
another  substantive  thing. 

Defendant  might  go  into  the  combination  after 
its  formation,  without  having  previously  executed 
the  agreement.  It  appears  on  the  face  of  the  agree 
ment  that  some  individuals  signed  it ;  but  individuals 
could  not  join  the  combination;  they  were  organ 
ized  as  corporations,  and  those  corporations  after- 


ESSAYS  AND  ADDRESSES  217 

ward  went  into  the  combination,  although  they  had 
never  signed  the  agreement. 

Ill — Whether  defendant  be  in  the  combination  is 
determined  exclusively  and  decisively  by  the  trans 
fer  of  its  stock  to  the  board,  named  the  Sugar  Re 
fineries  Company.  The  answer  admits  that  "  the 
owners  of  corporate  stock  of  this  defendant,  and  of 
other  sugar  refinery  companies,  have  assigned  and 
transferred  their  stock  to  the  said  persons  called 
the  Sugar  Refineries  Company"  (folio  57),  and  the 
fact  appears  also  in  the  evidence  (folios  115,  121, 
138).  Armed  with  the  voting  power  of  defendant 
corporation,  the  board  has  absolute  control  of  the 
corporation,  and  is  bound  by  the  deed  under  which 
it  holds  its  stock,  to  exert  that  control  in  the  interest 
and  for  the  aggrandizement  of  the  combination. 

IV — This  defendant,  in  a  peculiar  and  emphatic 
sense,  is  a  party  to  the  combination;  for  while  the 
board  is  only  nominal  owner  of  the  stock  of  other 
companies,  the  beneficial  ownership  being  in  the 
holders  of  the  certificates  for  which  it  was  ex 
changed  ;  of  defendant's  stock,  while  the  board  holds 
the  legal  title,  the  beneficial  interest  is  in  the  associa 
tion  ;  for  defendant's  stock  was  bought  by  Searles  in 
behalf  of  the  combination,  was  paid  for  by  the 
money  of  the  combination  (folios  160,  163),  and, 
accordingly,  the  dividend  declared  upon  defend 
ant's  stock  is  retained  in  the  treasury  of  the  com 
bination  (folio  204). 

V — The  declaration  of  a  dividend  by  the  board 
upon  defendant's  stock  (folio  201)  affords  con- 


218  ESSAYS  AND  ADDRESSES 

elusive  evidence  of  its  connection  with  the  combina 
tion. 

VI — To  the  argument  that  since  appellant  had 
no  legal  power  to  enter  the  combination,  in  con 
templation  of  law  it  has  not  entered  the  combina 
tion,  the  Court  of  Appeals  furnishes  a  conclusive 
answer  in  the  Matter  of  McGraw,  in  N.  Y.,  106. 

XXIII 

Defendant  corporation  was  carried  into  the  com 
bination  by  the  concurrent  action  of  all  the  stock 
holders  and  trustees  —  action,  taken  not  as  indi 
viduals,  but  as  stockholders  and  trustees,  and  taken 
for  the  express  purpose  of  placing  the  corporation 
within  the  grasp  and  control  of  the  combination. 

i — The  original  resolution  of  April  22d,  1887, 
authorizing  the  accession  of  the  company,  and  as 
a  company  (folio  103),  was  adopted  at  a  regular 
meeting  of  the  stockholders,  all  the  trustees  being 
present  and  voting  for  the  resolution  (folios  104  and 
105).  The  resolution  of  the  25th  November,  1887, 
authorizing  the  sale  and  transfer  of  defendant's 
stock  to  Searles  was  adopted  at  a  regular  meeting 
of  stockholders,  all  being  present  except  two,  and 
they  "  consenting  and  delivering  up  their  stock " 
(folios  116-118).  At  this  meeting  all  the  trustees 
were  present  and  voted  for  the  resolution  (folios 
101,  116,  118,  121). 

In  every  instance  the  board  had  assurance  that 
the  transfer  of  stock  was  made  by  authority  of  "  all 
the  stockholders  "  (folio  195). 


ESSAYS  AND  ADDRESSES          219 

"  The  agreement  was  in  fact  made  and  the  mort 
gage  authorized  by  all  the  stockholders.  They  were, 
it  is  true,  also  trustees,  but  their  assent  in  that 
capacity  must  bind  them  in  both  characters." 
(Paulding  vs.  Company,  94  N.  Y.,  341.) 

2. — Searles,  being  sole  owner  of  defendant's 
stock,  being  in  fact  the  company  ("I  was  the  North 
River  Sugar  Refining  Company"),  (folio  150), 
transferred  it  to  the  Sugar  Refineries  Board  (folio 
139).  Thus  by  the  action  of  all  its  stockholders 
and  trustees,  defendant  company  was  taken  into  the 
combination,  and  there  it  is  to-day. 

3. — And,  not  only  was  defendant  carried  into 
the  combination  by  the  act  of  its  stockholders  as 
such;  but  its  present  stockholders,  as  such,  are  the 
men  who  compose  and  control  the  combination. 

XXIV 

ON  the  hypothesis  that  by  no  act  of  its  trustees, 
as  such,  was  defendant  introduced  into  the  com 
bination,  we  answer  that  in  quo  warranto  to  dis 
solve  a  corporation,  it  is  the  misconduct  of  the 
corporators  that  operates  a  forfeiture  of  the  cor 
porate  franchise. 

i. — The  corporation  itself  —  the  metaphysical 
entity  —  is  obviously  incapable  of  action.  Its 
"  concerns  "  are  "  managed  "  by  the  board  of  trus 
tees  (Act  1848,  Section  3)  ;  but  these  trustees  are 
"  elected  by  the  stockholders  "  (id.),  who  therefore 
constitute  the  ultimate  and  supreme  power  in  the 
corporation.  The  will  of  the  corporators  is  the  will 


220          ESSAYS  AND  ADDRESSES 

of  the  corporation;  the  property  of  the  corporation 
is  virtually  the  property  of  the  corporators;  the 
gains  of  the  corporation  are  the  gains  of  the  cor 
porators,  and  its  losses  their  losses.  The  corpo 
rators  constitute  the  corporation;  so  that  if  they  all 
die  it  dies  (Field  on  Corp.,  449;  Boone  on  Corp., 
Sect.  199).  In  fact  the  corporators  are  the  cor* 
p oration,  and  the  notion  of  a  corporate  entity,  dis 
tinct  and  apart  from  the  natural  persons  composing 
the  corporation — of  a  body  independent  of  its 
members  —  of  a  substance  separate  from  its  con 
stituents  —  this  notion,  invented  by  the  subtle  in 
tellect  of  Coke,  "  for  the  purpose  of  perpetual  suc 
cession  "  (Marshall,  C.  J.,  in  Dartmouth  College 
Case,  4  Wheaton,  636),  is  an  empty  fiction,  and, 
as  such,  of  no  weight  in  the  present  discussion. 
On  this  point  the  authorities  are  clear  and  con 
clusive. 

"  The  right  of  acting  as  a  corporation  is  a  fran 
chise  in  the  individuals  that  compose  it."  (2  Kyd 
on  Corp.,  475.) 

"  A  corporation  in  the  concrete  is  taken  for  the 
particular  members  of  such  corporation."  (Ayl- 
iffe,  Civ.  Law,  196.) 

"  The  corporation  consists,  of  the  whole  number  of 
members."  (i  Morawetz  on  Corp.,  Sec.  474.) 

"  A  corporation  is  a  collection  of  individuals  in 
one  body."  (Bronson,  J.,  in  People  vs.  Assessors, 
i  Hill,  620.) 

"  Corporations  are  little  more  than  aggregations 
of  individuals  united  for  some  legitimate  purpose 


ESSAYS  AND  ADDRESSES          221 

and  acting  as  a  single  body."  (McKinley  vs. 
Wheeler,  130  U.  S,  633.) 

"  A  corporation  is  really  an  association  of  per 
sons,  and  no  judicial  dictum  or  legislative  enact 
ment  can  alter  this  fact."  ( i  Mora,  on  Corp.,  Sec. 
227.) 

"  A  corporation  generally  consists  of  members  in 
their  natural  capacity."  (i  Waterman  on  Corp., 
Sec.  5.) 

"  Corporations  are  merely  associations  of  indi 
viduals  united  for  a  special  purpose,  and  permitted 
to  do  business  under  a  particular  name,  and  have 
a  succession  of  members  without  dissolution." 
(Pembina  vs.  Pennsylvania,  125  U.  S.,  189.) 

"  The  word  '  corporations '  is  but  a  collective 
name  for  the  corporators  or  members  —  a  corpora 
tion  is  not  a  reality  or  thing  distinct  from  its  con 
stituent  parts."  (i  Mora.,  Sec.  i.) 

"  A  corporation  and  its  shareholders  are  in  reality 
the  same."  (2  Mora,  on  Corp.,  Sec.  852.) 

"  The  shareholders,  then,  vested  with  the  corpo 
rate  powers,  are  the  body  corporate,  corporation,  or 
company."  (Taylor  on  Corp.,  Sec.  50.) 

"  A  stockholder  is  an  integral  part  of  the  cor 
poration,"  and  so  without  notice  to  himself,  he  is 
bound  by  notice  to  the  corporation.  (Sanger  vs. 
Upton,  91  U.  S.,  59;  Glenn  vs.  Soule,  22  Fed.  Rep., 

4I7-) 

"  The  property  of  the  corporation  belongs  equita 
bly  to  the  stockholders ;  and  they  are  virtually  the 
debtors  of  the  creditors  of  the  corporation."  (Pet- 


222'          ESSAYS  AND  ADDRESSES 

tibone  vs.  Toledo,  &c.,  Co.,  39  Alb.  Law  J.,  147, 
Mass.  Supreme  Judical  Court;  Bissell  vs.  R,  R.  Co., 
22  N.  Y.,  259.) 

In  an  action  against  a  corporation  stockholders 
are  represented  by  the  corporation,  and  a  judgment 
against  it  conclusively  binds  them.  (Cook  on 
Stock,  &c.,  Sec.  209;  Mora.,  Sec.  865.) 

"  The  corporation  of  London  is  the  citizens  of 
London."  (City,  &c.,  vs.  Wood,  12  Modern,  669.) 

"  The  people  of  the  locality  constitute  the  politi 
cal  corporation."  (Clark  vs.  Rochester,  24  Barb., 
446,  473.) 

The  individual  members  are  the  corporation,  and 
hence  citizenship  of  members  determines  Federal 
jurisdiction  of  the  corporation. 

"If  the  corporation  be  considered  as  a  mere 
faculty,  and  not  as  a  company  of  individuals,  who 
in  transacting  their  joint  concerns  may  use  a  legal 
name,  they  must  be  excluded  from  the  courts  of 
the  Union."  (Marshall,  C.  J.,  in  Bank  vs.  Dev- 
eaux,  5  Cranch.,  61,  87;  Louisville  vs.  Letson,  2 
How.  (U.  S.),'497;  552.) 

"  When  the  certificate  shall  have  been  filed,  etc., 
the  persons  who  shall  have  signed  and  acknowl 
edged  the  same  " —  and  of  course  their  successors  — 
"  shall  be  a  body  politic  and  corporate."  (Act 
1848,  Sec.  2.) 

2. — The  corporate  franchises  vest,  not  in  the  cor 
poration,  but  in  the  corporators. 

"  A  grant  of  corporate  existence  is  a  grant  of 
special  privileges  to  the  corporators,  enabling  them 


ESSAYS  AND  ADDRESSES          223 

to  act  for  certain  designated  purposes  as  a  single  in 
dividual."  (Paul  vs.  Virginia,  8  Wall.,  181.) 

"  Corporate  franchises  are  privileges  conferred  by 
grant  from  the  Government,  vested  in  private  indi 
viduals.  They  contain  an  implied  covenant  on  the 
part  of  the  Government  not  to  invade  the  rights 
vested,  and  on  the  part  of  the  grantee  "  (i.  e.}  the 
individuals)  "  to  execute  the  conditions  and  duties 
prescribed  in  the  grant."  (3  Kent,  458;  People  vs. 
Utica,  15  Johns.,  387;  State  vs.  Bank,  41  Am.  Dec., 
112.) 

"  The  franchise  to  be  and  act  as  a  corporation 
vests  in  the  individuals  who  compose  the  corpora 
tion,  and  not  in  the  corporation  itself,"  and  hence, 
does  not  pass  by  the  assignment  of  the  corporation. 
(Fietsam  vs.  Hay,  122  111.,  293.) 

"  We  have  supposed,  if  anything  was  settled  by 
an  unbroken  course  of  decisions  in  the  Federal  and 
State  courts,  it  was  that  an  act  of  incorporation 
was  a  contract  between  the  State  and  the  stock 
holders.  All  courts,  at  this  day,  are  estopped  from 
questioning  the  doctrine."  (Davis,  J.,  in  Bingham- 
ton  Bridge  Case,  3  Wall.,  51,  73;  Wilmington  R.  R. 
Co.  vs.  Reid,  13  Wallace,  266;  The  Delaware  R.  R. 
Tax  Case,  18  Wallace,  225 ;  Erie,  &c.,  vs.  Casey,  26 
Pa.  St.,  287.) 

3. — It  results,  therefore,  obviously  and  irrefrag- 
ably,  that  since  the  corporate  franchise  vests  in  the 
corporators,  and  the  act  of  incorporation  constitutes 
a  contract  between  them  and  the  Government,  it 
is  their  act  which  operates  a  forfeiture  of  the  fran- 


224          ESSAYS  AND  ADDRESSES 

chise,  and  their  misconduct  which  incurs  the  pen 
alty  of  forfeiture  of  their  franchise. 

And  so  are  the  authorities. 

"  Any  particular  member  of  a  corporation  may  be 
disfranchised  or  lose  his  place  in  the  corporation 
by  acting  contrary  to  the  laws  of  the  land."  (i 
Black  Com.,  484,  marginal.) 

And,  "  as  every  member  may  forfeit  that  which 
any  member  may,  the  same  acts  which  will  forfeit 
the  rights  of  every  member  separately,  if  done 
jointly  by  all  the  members,  will  be  a  forfeiture  of 
the  corporate  existence."  (2  Kyd,  477.) 

"  When  the  question  is  of  the  non-user  or  abuse 
of  franchises  by  a  corporation,  it  must  of  necessity 
be  intended  of  the  acts  or  negligence  of  the  natural 
persons,  or  of  those  officers  who  were  empowered  by 
them."  (2  Kyd,  478.) 

"  Though  the  proceedings  be  against  the  cor 
porate  body,  it  is  the  acts  or  omissions  of  the  in- 
dividual  corporators  that  is  the  subject  of  the  judg 
ment  of  the  Court.  The  powers  and  privileges  are 
conferred,  and  the  conditions  enjoined  upon  them; 
they  obtain  the  grant  and  engage  to  perform  the 
conditions."  (People  vs.  Kingston,  &c.,  28  Wend., 
205.) 

Accordingly,  in  Denike  vs.  Company,  80  N.  Y., 
606,  it  was  held  that  "  all  the  stockholders  of  a  cor 
poration  uniting  might  undoubtedly  surrender  the 
franchises  and  work  its  dissolution," — and  this 
though  the  statute  (Sec.  2419,  Code  Civ.  Pro.)  pre 
scribes  that  a  voluntary  dissolution  shall  be  uoon 


ESSAYS  AND  ADDRESSES          225 

the  petition  of  the  trustees.     (S.  P.  Webster  vs. 
Turner,  12  Hun,  264.) 

xxv 

Party  to  a  combination  of  which  the  effect  is 
obvious  and  inevitable,  defendant  will  be  held  to 
intend  that  effect.  Indeed,  any  other  purpose  of 
the  parties  to  the  combination  than  to  prevent  com 
petition  and  enhance  price  is  inconceivable.  (Haire 
vs.  Wilson,  9  B.  &  C.,  643 ;  Denny  vs.  Dana,  2  Cush., 
1 60.) 

"  In  whatever  language  a  statute  may  be  framed, 
its  purpose  must  be  determined  by  its  natural  and 
reasonable  effect."  (Henderson  vs.  The  Mayor, 
92  U.  S.,  259.) 

XXVI 

The  case  then,  is  this :  The  persons  who  pro 
cured  the  charter  of  defendant  company  were  en 
dowed  by  the  State  with  the  corporate  franchise  and 
the  faculties  of  a  body  politic,  in  consideration  of 
the  benefit  to  the  public  from  an  increased  pro 
duction  of  refined  sugar,  and  the  consequent  greater 
supply  and  less  price  to  the  community;  but  so  far 
from  appearing  in  the  market  as  an  independent 
producer,  and  a  competitor  in  the  supply  of  the  com 
modity,  and  a  factor  in  the  reduction  of  its  price, 
defendant  company,  by  the  agency  of  its  constituent 
members,  is  introduced  into  a  combination  of  sugar 
refineries,  of  which  the  apparent  and  inevitable 
operation  is  to  limit  production,  diminish  supply, 


226  ESSAYS  AND  ADDRESSES 

and  enhance  prices.  Indisputably,  here  is  a  viola 
tion  of  the  trust  and  a  breach  of  the  condition  upon 
which  the  corporate  franchise  was  conceded  to  de 
fendant.  Indisputably  defendant's  corporate  facul 
ties,  instead  of  conducing  to  the  benefit  of  the  pub 
lic,  are  perverted  to  its  detriment,  and,  consequently, 
it  has  incurred  a  forfeiture  of  its  franchises. 

"  The  stated  purpose  for  which  the  '  American 
Sugar  Refinery  Company '  became  incorporated 
was  the  production  —  the  competitive  production  — 
of  sugar  to  supply  human  want;  the  business  fran 
chise  granted  was  not  for  the  sole  benefit  of  the  cor 
poration  or  its  stockholders,  but,  in  a  measure,  for 
that  of  the  public  as  well;  the  understood  com 
mercial  policy  underlying  the  grant,  and  to  the 
observance  of  which  the  defendant,  by  accepting  it, 
stood  committed,  looked  to  the  promotion  of  trade 
in  that  commodity — the  promotion  of  trade  neces 
sarily  denotes  the  encouragement  of  rivalry  in  the 
business  —  competition  on  equal  terms  is  conceded 
to  be  the  life  of  trade,  and  to  invite  and  promote 
that  competition  is  the  established  policy  of  our 
laws.  As  competition  tends  to  create  trade,  so 
monopoly  tends  to  destroy  it.  This  is  the  axiom 
which  underlies  the  constitution  and  general  legis 
lation  of  this  State,  and  upon  which  the  decisions 
of  its  courts  have  habitually,  not  to  say  uniformly, 
proceeded/'  (People,  &c.,  vs.  The  American  Sugar 
Ref.  Co.,  7  Railway  &  Corp.  Law  Journal,  86.) 

If  a  monopoly  combination  among  natural  per 
sons  be  contrary  to  law,  much  more  is  it  so  between 


ESSAYS  AND  ADDRESSES  227 

corporations ;  because  ultra  vires,  and  because  repug 
nant  to  the  aim  of  corporate  institution,  "  the  true 
ground  and  original  of  corporations  being  the  in 
crease  and  advancement  of  trade  and  merchan 
dise."  (Sir  Robert  Atkin's  Case,  3  Modern,  12.) 

XXVII 

Independently  of  the  character  of  the  combina 
tion,  i.  e.,  as  tending  to  monopoly  and  repugnant  to 
public  policy,  defendant,  by  joining  it,  did  an  act 
ultra  vires  in  abuse  of  its  powers,  and  in  perversion 
of  its  institution;  and  so  incurred  the  statutory 
penalty,  namely,  forfeiture  of  its  corporate  fran 
chise. 

I — That  defendant  was  guilty  of  an  excess,  and  so 
of  an  abuse,  of  its  powers,  in  becoming  a  party  to 
the  combination,  is  palpable  upon  a  survey  of  the 
constitution  of  The  Sugar  Refineries  Company,  and 
its  relations  to  the  associated  corporations. 

(a)       CONSTITUTION    OF    THE    COMPANY 

ist.  To  have  a  corporate  name — "The  Sugar 
Refineries  Company/' 

2d.  To  have  a  common  seal. 

3d.  To  have  a  capital  stock. 

4th.     To  divide  its  capital  stock  into  shares. 

5th.     To  issue  negotiable  certificates  of  stock. 

6th.     To  have  perpetual  succession. 

7th.     To  make  by-laws. 

8th.     To  institute  offices. 


228  ESSAYS  AND  ADDRESSES 

9th.     To  have  power  of  amotion. 

And,  as  the  Board  consists  of  more  than  seven 
members,  the  law  annexes  to  it  these  additional  at 
tributes. 

loth.  To  sue  and  be  sued  as  a  substantive  legal  en 
tity  (Code  Civ.  Pro.,  Sees.  1919,  1920,  1812,  264). 

nth.  To  take  hold  and  convey  property  (Laws 
1867,  Ch.  289;  Waterbury  vs.  Company,  50  Barb., 
160). 

Possessing  every  faculty  of  a  corporation  except 
irresponsibility  of  members  for  liabilities  of  the 
body,  the  Company  is,  by  the  law  of  New  York,  a 
Joint  Stock  Association.  (2  Bouvier's  Law  Diet., 
"Joint  Stock  Company";  Laws  1849,  Ch.  258; 
New  York  Const.,  Art.  8,  Sec.  i ;  People  vs.  Wem- 
ple,  7  R.  R.  &  Corp.  Law  Journal,  127;  Water- 
bury  vs.  Company,  50  Barb.,  157;  Liverpool  Ins. 
Co.  vs.  Massachusetts,  10  Wallace,  566;  Westcott 
vs.  Fargo,  61  N.  Y.,  547;  The  Bank  vs.  Vander- 
werker,  74  N.  Y.,  234;  i  Waterman  on  Corp.,  Sec. 
10 ;  Cook  on  Stock,  &c.,  Sees.  504,  506). 

(b)       RELATION    OF    CORPORATIONS    TO    COMPANY 

ist.  The  Company  is  created  by  the  corpo 
rations. 

2d.  It  is  called  "  The  Sugar  Refineries  Com 
pany." 

3d.  The  capital  stock  of  "  each  corporation  " — 
not  to  the  shareholders  individually  —  is  transferred 
to  the  board. 

4th.     The    corporations    "  shall    be    entitled    to 


ESSAYS  AND  ADDRESSES  229 

shares  "  in  the  Sugar  Refineries  Company;  and  "  of 
the  shares  allotted  to  the  several  refineries,"  &c. 

5th.  The  profits  arising  from  each  corporation 
shall  be  paid  over  by  it  to  the  board. 

6th.  The  funds  necessary  for  the  board  are  to 
be  raised  "  by  mortgages  to  be  made  by  the  cor 
porations." 

7th.  The  board  qualifies  trustees  of  the  corpora 
tions  by  the  transfer  of  corporate  stock  "  to  be  re- 
transferred  when  requested  by  the  board." 

8th.  The  stock  of  the  corporations  is  held  by  the 
board  with  all  the  rights  and  powers  incident  to 
stockholders  in  the  several  corporations. 

9th.  The  stock  of  the  corporations  constitutes 
the  only  capital  of  the  company. 

loth.  The  stock  of  the  corporations  is  ex 
changed  for  the  stock  of  "  The  Sugar  Refineries 
Company  " —  this  company  taking  the  place  of  the 
shareholders  in  the  corporations.  Thus,  member 
ship  in  "  The  Sugar  Refineries  Company  "  is  sub 
stituted  for  membership  in  the  corporation. 

i  ith.  The  corporations,  as  corporations,  are  par 
ties  to  the  instrument  creating  the  board. 

Here,  then,  is  a  joint-stock  association  with  a 
capital  of  $50,000,000,  holding  all  the  stock  of  the 
several  corporations,  receiving  all  the  profits  of  the 
several  corporations,  appointing,  in  effect,  all  the 
trustees  of  the  several  corporations,  and  grasping 
an  absolute  control  of  the  several  corporations  in 
the  conduct  of  their  business  and  the  disposition  of 
their  property.  Plainly  it  was  ultra  vires  and  an 


230  ESSAYS  AND  ADDRESSES 

abuse  of  the  powers  of  the  corporations  to  contract 
such  relations  to  such  a  body. 

II — "  A  statutory  corporation  is  limited  as  to  all 
its  powers,  by  the  purposes  of  its  incorporations  as 
defined  in  the  act.  The  Memorandum  of  Incor 
poration  "  (i.  e.,  certificate  of  incorporation),  "is 
their  fundamental  and  their  unalterable  law;  and 
they  are  incorporated  only  for  the  objects  and  pur 
poses  expressed  in  the  memorandum  "  (certificate). 
(Lord  Selborne  in  Ashbury,  &c.,  Co.  vs.  Riche,  L. 
R.,  7  H.  L.,  653.) 

"  When  a  corporation  is  organized  through  ar 
ticles  of  association  entered  into  under  general  laws, 
the  memorandum  of  association  stands  in  the  place 
of  a  legislative  charter,  in  so  far  that  its  powers  can 
not  exceed  those  enumerated  therein;  but  powers 
enumerated  and  claimed  therein  which  are  not  war 
ranted  by  statute  are  void  for  want  of  authority." 
(Oregon  vs.  Ry.  Co.,  130  U.  S.,  2;  The  Eastern, 
&c.,  vs.  Vaughan,  14  N.  Y.,  546,  551;  People  vs. 
Chicago  Gas  Trust,  supra.) 

By  Section  i,  Act  1848,  the  certificate  of  incor 
poration  must  state  the  objects  for  which  the  "  com 
pany  is  formed,"  and  "  the  purpose  of  the  organiza 
tion  is  limited  to  one  of  the  general  classes  of  busi 
ness,  designated  in  the  act,  as  manufacturing,  min 
ing,  mechanical  or  chemical."  (The  People  vs. 
Beach,  19  Hun,  260.) 

Defendant's  declared  object  is  "  the  manufacture 
and  sale  of  sugar,  syrups  and  molasses."  Thus, 
neither  by  their  charter,  nor  by  the  Act  of  1848,  nor 


ESSAYS  AND  ADDRESSES  231 

by  the  general  statute  defining  corporate  powers 
(Rev.  Stat.,  Section  i,  Title  3,  Ch.  18,  Part  i),  have 
these  corporations  authority  to  contract  the  alliance 
with  the  Sugar  Refineries  Company. 

"  A  corporation  so  formed  is  a  manufacturing 
corporation  with  powers  limited  to  the  accomplish 
ment  of  the  purposes  so  declared. "  (Astor  vs.  Ar 
cade  R.  Co.,  ii3N.  Y.,  93.) 

Ill — A  corporation  cannot  be  created  merely  for 
the  purpose  of  consolidating  with  another. 
(Church  vs.  Perry,  20  N.  Y.  State  Rep.,  633.) 

A  corporation  can  make  no  contract  which  is  not 
necessary,  directly  or  incidentally,  to  enable  it  to 
answer  the  purpose  of  its  charter.  (Beach  vs.  Ful 
ton,  3  Wend.,  573 ;  Legnard  vs.  Association,  80  N. 
Y.,  638 ;  Millbank  vs.  R.  R.  Co.,  64  How.,  23-25 ; 
Rock  River  vs.  Sherwood,  10  Wise.,  230;  Abbey 
vs.  Billups,  35  Miss.,  618;  Davis  vs.  Old  Colony, 
131  Mass.,  258;  Pierce  on  Railroads,  500,  note; 
Boone  on  Corp.,  Sec.  43.) 

Hence,  held  that  a  gas  company  cannot  purchase 
the  stock  of  another  company,  because  "  there  is  no 
necessary  connection  between  manufacturing  gas 
and  buying  stock."  (People  vs.  Chicago  Gas  Trust, 
22  Chicago  Legal  News,  107.) 

IV — The  connection  with  "  The  Sugar  Refineries 
Company  "  is  not  necessary  to  enable  the  corpora 
tions  to  answer  the  end  of  their  existence;  nor  is  the 
contract  of  connection  made  in  the  legitimate  prose 
cution  of  their  business,  and  hence,  the  contract  and 
connection  are  ultra  vires  and  an  abuse  of  corporate 


232          ESSAYS  AND  ADDRESSES 

power.  (People  vs.  Chicago  Gas  Trust,  22  Chi 
cago  Legal  News,  107;  Hood  vs.  R.  R.  Co.,  22 
Conn.,  i ;  Franklin  vs.  Lewiston,  68  Maine,  43.) 

XXVIII 

The  combination  between  the  several  corpora 
tions,  resulting  from  the  transfer  of  their  stock  to 
the  board,  "  subject  to  the  purposes  set  forth  in  this 
deed,"  if  not  in  legal  conception,  is  in  practical 
effect  an  amalgamation  or  consolidation  of  these 
corporations  — •  or,  at  all  events,  a  copartnership 
between  them.  (Pittsburg  vs.  McMillin,  53  Hun, 
67,  69;  Champion  vs.  Bostwick,  18  Wend.,  175, 
183;  Burnett  vs.  Snyder,  81  N.  Y.,  555 ;  Stroker  vs. 
Kiting,  97  N.  Y.,  102,  105.) 

Indeed,  that  the  combination  constitutes  a  part 
nership  between  the  corporations  is  conceded  by  the 
apologists  of  the  Trust.  (Prof.  Dwight's  Essay, 
3  Political  Science  Quarterly,  624. ) 

I — The  avowed  object  of  the  combination  was  a 
consolidation  of  the  several  corporations  (folios 
107,  119.) 

II — And  such  is  the  result. 

ist.  The  stockholders  in  each  are  stockholders 
in  all  —  indeed,  the  stock  of  all  is  blended  in  a 
single  and  indistinguishable  mass. 

2d.  The  profits  of  each  are  the  profits  of  all,  and 
the  losses  of  each  the  losses  of  all ;  and  thus  an  ab 
solute  unity  and  identity  of  interest  pervades  the 
aggregate  of  associated  corporations. 

3d.     The  voting  power   in   each   is   the  voting 


ESSAYS  AND  ADDRESSES  233 

power  in  all;  and  so  an  aboslute  unity  and  identity 
of  control  dominates  and  directs  the  action  of  the 
aggregate  of  associated  corporations. 

4th.  Here,  then,  is  an  organic  union  —  a  fusion 
of  separate  individualities  in  an  indivisible  unit  — 
in  short,  an  amalgamation  and  consolidation  of  the 
distinct  corporate  existences;  and  the  several  and 
separate  entity  of  each  corporation  is  a  mere  fiction, 
without  practical  force  or  efficacy. 

5th.  A  common  name,  "  The  Sugar  Refineries 
Company,"  distinguishes  the  unity  of  combination 
into  which  the  several  corporations  are  consolidated. 

6th.  The  association  involves  the  essential  and 
decisive  principles  of  partnership;  namely,  a  com 
munity  of  capital  —  the  stock  contributed  to  the 
board  by  the  several  corporations  —  and  a  com 
munity  of  profit  and  loss  among  the  members  of 
the  association. 

Ill — But,  "  corporations  cannot  consolidate  their 
funds  or  form  a  partnership,  unless  authorized  by 
express  grant  or  necessary  implication/'  (The  N. 
Y.  Canal  Co.  vs.  Sharon,  7  Wend.,  412.) 

"  Without  legislative  authority  corporations 
organized  separately  cannot  merge  and  consolidate 
their  interests."  (Clearwater  vs.  Meredith,  i 
Wall,  25,  29.) 

In  Massachusetts  (as  in  New  York)  the  exclusive 
management  of  manufacturing  corporations  is 
vested  in  the  trustees;  and  hence,  held  that  such  a 
corporation  has  no  power  to  form  a  copartnership ; 
because,  first,  it  would  subject  the  corporation  to 


234          ESSAYS  AND  ADDRESSES 

the  control  of  the  partner,  and,  secondly,  would  sub 
ject  the  corporation  to  the  copartnership  liabilities. 
(Whittenton  vs.  Upton,  10  Gray,  596-597.) 

"  An  agreement  that  the  profits  and  loss  shall  be 
brought  into  one  common  fund  and  the  net  receipts 
divided,  without  the  authority  of  an  act  of  Parlia 
ment,  appears  to  me  clearly  and  palpably  illegal; 
otherwise  it  might  be  that  all  the  railways  in  the 
kingdom  might  be  collected  into  one  vast  joint-stock 
concern."  (V.  C.  Wood  in  Charlton  vs.  R'ys,  5 
Jurist  N.  S.,  1096,  noo.) 

"  There  was  no  authority  of  law  to  consolidate 
these  two  corporations,  and  to  place  both  under  the 
same  management,  or  to  subject  the  capital  of  one 
to  answer  for  the  other."  (Pearce  vs.  R.  R.  Co., 
21  How.  U.  S.,  443.) 

"  Contracts  between  corporations  which  create 
in  fact,  if  not  in  name,  partnerships,  are  void  on  the 
double  ground  of  being  ultra  vires  and  also  contrary 
to  public  policy."  (Green's  Brice,  416,  425  (2d 
Ed.) 

"  A  corporation  cannot  enter  any  arrangement 
amounting  to  a  virtual  consolidation  or  partner 
ship."  (i  Morawetz  on  Corp.,  Sec.  376,  ace.  A, 
&  A.  on  Corp.,  Sec.  272 ;  Parsons  on  Partnership,  p. 
29 ;  Marine  Bank  vs.  Ogden,  29  111.,  248 ;  Taylor  on 
Corp.,  Sees.  419-420;  Mallory  vs.  Oil  Works,  2 
Pickle  (Tenn.),  598;  Pierson  vs.  McCurdy,  33 
Hun,  520,  522;  French  vs.  Donohue,  29  Minn., 
in;  Coleman  vs.  R'y  Co.,  10  Beavan,  i.) 

"  Of  what  avail  is  it  that  any  number  of  gas 


ESSAYS  AND  ADDRESSES          235 

companies  may  be  formed  under  the  general  law, 
if  a  giant  trust  company  can  be  clothed  with  the 
power  of  holding  the  stock  and  property  of  such 
companies,  and  through  the  control  thereby  ob 
tained,  can  direct  all  their  operations,  and  weld  them 
into  one  huge  combination  ?  "  ( People  vs.  Chi 
cago  Gas  Trust  Co.,  supra.) 

And  although  corporations  under  the  acts  sup 
plementary  to  the  Act  of  1848  have  a  qualified 
right  of  consolidation,  yet  here  is  no  such  consoli 
dation  as  the  statute  allows  and  prescribes.  All 
statutory  formalities  must  be  complied  with,  to  per 
fect  a  consolidation.  (Peninsular  R.  R.  Co.  vs. 
Thorp,  28  Mich.,  506;  Tuttle  vs.  R.  R.  Co.,  35 
Mich.,  247.) 

XXIX 

Defendant  corporation  has  forfeited  its  char 
ter  by  the  transfer  of  its  control  to  "  The  Sugar  Re 
fineries  Company." 

i. — "  The  Sugar  Refineries  Company  "  is  a  body 
or  board  foreign  to  defendant  corporation  —  not 
recognized  by  its  charter  —  and  this  body  or  board, 
by  virtue  of  its  right  to  vote  defendant's  stock, 
dominates  it  by  an  absolute  and  exclusive  control. 
The  autonomy  of  the  constituent  corporations  is 
abolished ;  and  they  become  mere  subordinates  and 
satellites  of  the  central  and  supreme  syndicate. 

"  The  corporations  thus  associated  renounce 
autonomy.  .  .  .  The  stock  was  transferred  to 


236  ESSAYS  AND  ADDRESSES 

the  trust,  not  for  the  purpose  of  being  sold,  but  to 
give  control  of  the  corporations;  to  make  the  of 
ficers  puppets  in  the  hands  of  the  trust,  and  thus 
substitute  the  latter  as  the  governing  body  of  the 
corporations."  (Gould  vs.  Head,  38  Fed.  Rep., 
888.) 

"  Transfer  of  all  stock  to  the  board  gave  the 
board  control  of  the  corporate  policy  and  man 
agement  of  the  corporate  business."  (People  vs. 
American  Sugar  Refining  Co.,  7  Railway  &  Corp. 
Jour.,  84,  85.) 

2. — By  Section  3,  Act  1848,  the  exclusive  manage 
ment  of  "  the  stock,  property  and  concerns  "  of  de 
fendant  is  vested  in  its  board  of  trustees,  them 
selves  to  be  stockholders,  and  to  be  chosen  by  the 
stockholders.  Here,  the  trustees  are  appointed  by 
the  board,  and  they  are  stockholders  only  in  name, 
holding  their  stock  by  transfer  from  the  board,  and 
compellable  on  demand  to  retransfer  it  to  the  board ; 
and  it  was  an  act  ultra  vires  for  defendant  to  sur 
render  its  control  and  management  to  "  The  Sugar 
Refineries  Company  " ;  and  so,  defendant  has  for 
feited  its  charter  by  "  offending  against  the  Act  by 
and  under  which  it  was  created."  (Code  Civ. 
Pro.,  Sec.  1798.) 

In  the  Central  R.  R.  Co.  vs.  Collins,  40  Ga.,  583, 
the  Court  say:  "  It  is  a  part  of  the  public  policy 
of  the  State  to  secure  a  reasonable  competition  be 
tween  its  railroads,  and  it  is  contrary  to  that  policy 
for  one  of  said  roads  to  attempt  to  secure  a  con 
trolling  interest  in  another  by  the  purchase  of  its 


ESSAYS  AND  ADDRESSES          237 

stock;  and  any  contract  made  with  that  view  is 
illegal." 

"  The  purchase  by  one  R.  R.  Company  of  the 
stock  of  another,  with  the  object  of  preventing  com 
petition,  is  against  public  policy  and  void."  (El- 
kins  vs.  R.  R.  Co,  36,  N.  J.  Eq.,  5.) 

"  Transfers  of  powers  of  one  corporation  to  an 
other,  without  the  authority  of  the  Legislature,  are 
against  public  policy."  (Chicago,  &c.,  vs.  Gas  Co., 
2  Am.  State  Reports,  124.) 

In  Bradford,  &c.,  R.  R.  Co.  vs.  N.  Y.,  &c.,  R.  R. 
Co.,  1 6  N.  Y.  State  Reporter,  208,  the  case  was  this : 
The  Bradford  R.  R.  Co.,  a  tributary  of  the  N.  Y., 
Lake  Erie  and  Western  R.  R.  Company,  desired  the 
assistance  of  the  latter  company  in  the  completion 
of  its  road,  and  to  that  end  the  Bradford  Company 
engaged  "  to  cause  to  be  deposited  "  with  the  Erie 
Company  "  a  majority  of  its  capital  stock,"  so  as 
to  give  the  Erie  Company  "  the  right  to  vote  upon 
the  stock  so  deposited."  Accordingly,  "  a  majority 
of  the  owners  of  the  Bradford  Company  stock  de 
posited  it  with  the  Erie  Company,"  but  the  Court, 
per  Daniels,  J.,  held  the  agreement  illegal,  because 
it  so  transferred  the  control  of  the  Bradford  Com 
pany  to  the  Erie  Company. 

This  case  is  obviously  identical  with  the  present 
as  to  the  point  in  discussion;  but  the  principle  is 
established  by  abundant  authority.  (Whitterton 
vs.  Upton,  10  Gray,  596-7;  Simpson  vs.  Denison, 
10  Hare,  51 ;  Richmond  vs.  Vestry,  3  Ch.  Div.,  82; 
Winch  vs.  Birkenhend,  5  DeG.  &  Sim.,  567;  Be- 


238  ESSAYS  AND  ADDRESSES 

man  vs.  Rufford,  6  Eng.  L.  &  Eq.,  106;  Hafer  vs. 
R.  R.  Co.,  19  Abb.  N.  C,  454;  Vanderbilt  vs.  Ben 
nett,  19  Abb.  N.  C.,  460;  Thomas  vs.  R.  R.  Co.,  101 
U.  S.,  83 ;  Ohio  &  Miss.,  &c.,  vs.  R.  R.  Co.,  5  Am. 
Law  Register  (N.  S),  733.) 

"  During  the  argument  counsel  invoked  the  aid 
of  the  undoubted  general  principle  that  the  owner 
ship  of  shares  of  stock,  as  of  other  property,  carries 
with  it  the  legal  right  to  sell,  and  contended  that 
the  owners  of  the  shares  of  the  South  Pennsylvania 
Railroad  Company  could  not  legally  be  restrained 
from  so  doing,  and  that  an  injunction  against  the 
purchaser  would  have  that  effect.  We  do  not  think 
the  principle  applies  to  this  case.  We  are  not 
called  upon  to  express  any  opinion  as  to  the  right  of 
the  individual  shareholders  to  sell  their  several 
shares  bona  fide  in  the  open  market.  This,  so  far 
as  they  are  concerned,  is  an  intended  sale  in  com 
bination  for  the  express  purpose  of  enabling  them 
to  abandon  the  rights  and  duties  conferred  and  im 
posed  upon  them  by  the  act  incorporating  the  com 
pany  and  of  putting  the  control  of  their  corpora 
tion  into  the  hands  of  its  rival.  This  is  an  act  con 
trary  to  the  public  policy  of  the  State,  which  they 
have  no  right  to  do."  (Penn.  R.  R.  Co.  vs.  Com 
monwealth,  7  Atl.  Rep.,  373.) 

"  It  is  against  public  policy  to  permit  one  corpora 
tion  to  embarrass  and  control  another  and  per 
haps  competing  corporation  in  the  management  of 
its  affairs,  as  may  be  done  if  it  is  permitted  to  pur- 


ESSAYS  AND  ADDRESSES          239 

chase  and  vote  upon  the  stock."  (Milbank  vs.  R. 
R.  Co.,  64  How.,  28.) 

"  That  an  individual  stockholder  in  a  private  cor 
poration  formed  for  business  purposes  may,  at  will, 
transfer  to  another  his  shares  of  stock  is  of  course 
not  to  be  questioned,  neither  it  is  doubted  that  any 
number,  even  all,  of  the  stockholders  may  by  con 
cert  had  between  them  sell  their  shares  and  sell 
them  to  a  purchaser  previously  agreed  upon  by  all. 
But  to  my  mind  it  is  equally  clear  that  when,  as  the 
necessary  legal  result  of  such  a  sale  of  stock,  a  trans 
fer  of  the  corporate  franchise  has  been  effected, 
the  State  —  the  people  —  who  granted  the  fran 
chise,  granted  it  upon  conditions  to  be  observed  and 
fulfilled  by  the  grantee,  may  institute  an  inquiry  — 
legislative,  through  their  political  representatives, 
or  judicial,  through  the  instrumentality  of  their 
courts  —  an  inquiry  into  the  purpose  for  which  the 
franchise  has  been  so  transferred,  an  inquiry 
whether  such  purpose  be  in  itself  lawful  or  unlaw 
ful,  and  whether  as  the  result  of  such  transfer  the 
franchise  is  employed  in  such  manner  or  in  a  busi 
ness  of  such  a  character  as  operates  a  breach  of  the 
conditions  annexed  to  the  grant."  (People  vs. 
American  Sugar  Refinery  Company,  7  Railway  & 
Corp.  Law  Journal,  86.) 

And  held  of  this  identical  combination,  that  by 
becoming  a  party  to  it  a  corporation  surrendered  its 
business  to  the  Sugar  Refineries  Company,  and  so 
forfeited  its  charter.  (Id.,  p.  83.) 


240  ESSAYS  AND  ADDRESSES 

XXX 

It  results  from  the  relations  of  the  corporations 
to  the  Sugar  Refineries  Company  that  the  former 
are  subject  to  the  absolute  control  of  the  latter  by 
virtue  its  power  to  vote  their  stock  and  to  appoint 
their  trustees. 

"  It  cannot  be  denied  that  the  appellee,  as  owner 
of  the  majority  of  the  shares  of  stock  of  the  com 
panies,  can  control  them  in  the  exercise  of  all  their 
corporate  powers,  through  a  board  of  management 
of  its  own  selection."  (People  vs.  Chicago  Gas 
Trust,  supra.) 

If,  then,  it  be  to  the  interest  of  the  combination 
to  stop  the  operations  of  particular  refineries,  the 
board,  we  may  be  sure,  will  arrest  their  operations. 
But,  as  the  price  of  sugar,  and  so  the  profits  of  the 
combination,  can  be  augmented  only  by  diminish 
ing  the  supply  of  sugar,  it  follows  that  the  power  of 
the  board,  actuated  by  interest,  will  be  exerted  to 
discontinue  or-  to  lessen  the  production  of  refin 
eries. 

And  so  it  was  ultra  vires  and  contrary  to  public 
policy  for  the  corporations  to  subject  themselves 
to  this  destroying  power  of  the  board. 

"  The  right  of  incorporation  conferred  under  the 
general  law,  is  in  the  nature  of  a  contract.  In  re 
turn  for  the  powers  and  franchises  granted,  the  cor 
poration  is  placed  under  obligation  to  perform  cer 
tain  duties  to  the  public,  and  it  cannot,  without  the 
consent  of  the  other  party  to  the  contract,  absolve 


ESSAYS  AND  ADDRESSES          241 

itself    from   its   obligations."     (Abbott  vs.    R.    R. 
Co.,  80  N.  Y.,  27.) 

"  The  privileges  awarded  to  the  four  gas  com 
panies  under  their  respective  charters,  were  given 
them  in  return  for,  and  in  consideration  of  services 
to  be  rendered  by  them  to  the  public.  The  public 
duty  is  imposed  upon  each  company  separately,  and 
not  upon  the  four  when  combined  together.  Each 
for  itself,  when  it  accepted  its  articles  of  associa 
tion,  assumed  an  obligation  to  perform  the  objects 
of  its  incorporation.  But,  the  appellee,  through  the 
control  which  it  does  or  may  exercise  over  the  com 
panies  by  reason  of  its  ownership  of  a  majority  of 
stock,  renders  it  impossible  for  them  to  discharge 
their  public  duties,  except  at  the  dictation  of  an 
outside  force,  and  in  the  manner  prescribed  by  a 
corporation  operating  independently  of  them.  The 
freedom  and  effectiveness  of  their  action  are  seri 
ously  interfered  with,  if  not  actually  destroyed. 
A  power  whose  exercise  leads  to  such  a  result  can 
not  be  lawfully  entrusted  to  any  corporate  body." 
(People  vs.  Chicago  Gas  Trust,  supra.) 

XXXI 

Defendant  has  forfeited  its  charter,  by  procur 
ing  and  permitting  its  management  to  be  conducted 
in  another  interest  than  that  of  its  own  stockholders. 

"  It  is  the  duty  of  the  corporate  management  to 
conduct  the  affairs  of  the  corporation  in  the  interests 
of  the  shareholders  as  such,  and  the  management  is 
not  justified  in  promoting  the  outside  interests  of  a 


242          ESSAYS  AND  ADDRESSES 

majority  of  shareholders  in  disregard  of  the  inter 
est  in  the  corporate  enterprise  of  ever  so  small  a 
minority."  (Taylor  on  Corp.,  Sec.  558;  Milbank 
vs.  R.  R.  Co.,  64  How.,  29.) 

But  here,  obviously,  the  management  of  defend 
ant  corporation  is  controlled,  not  by  its  own  proper 
and  peculiar  officers,  but  by  the  central  and  supreme 
syndicate;  and  this  syndicate  represents  not  the 
special  interests  of  defendant's  stockholders,  but  the 
general  interests  of  the  confederated  corporations. 

The  holders  of  trust  certificates  are  not  ipso  facto 
and  necessarily  owners  of  the  corporate  stock;  cer 
tificate  holders  and  stockholders  are  not  identical. 
The  certificates  pass  from  hand  to  hand,  and  their 
transfer  involves  no  assignment  of  the  corporate 
stock.  No  certificate  holder  is  owner  of  stock  in 
any  specific  corporation.  The  holder  of  a  trust  cer 
tificate  is  interested  in  the  welfare  of  no  particular 
corporation,  but  only  in  the  aggregate  earnings  of 
the  combined  corporations.  But,  the  interest  of  the 
combination  may  be  inconsistent  with  the  interest 
of  an  individual  corporation;  for  the  profits  of  the 
combination  are  increased  by  the  restriction  of  pro 
duction,  and  restriction  of  production  implies  sup 
pression  of  particular  corporations.  Hence,  by 
means  of  the  control  of  the  board  over  each  corpora 
tion,  the  interest  of  any  corporation  and  its  stock 
holders  may  be  sacrificed  to  the  general  interest  of 
the  combination. 

If  it  be  answered  that  a  certificate  holder  whose 
scrip  is  a  substitute  for  stock  in  a  suppressed  and 


ESSAYS  AND  ADDRESSES  243 

idle  corporation  is  compensated  by  the  increased 
dividends  of  the  combination,  then  it  appears  that 
the  earnings  of  a  profit-producing  corporation  are 
appropriated,  not  to  those  who  own  the  capital  of 
which  the  profits  are  the  product,  but  are  divided 
with  stockholders  of  other  corporations. 

In  a  word,  by  operation  of  the  system,  each  cor 
poration  shares  the  losses  and  partakes  the  profits 
of  every  other  corporation. 

Indisputably,  it  is  in  the  general  interest  of  the 
combination,  and  not  for  its  own  special  benefit  and 
aggrandizement,  that  defendant  corporation  is  con 
ducted. 

But  a  corporation  is  "  bound  to  apply  its  funds 
for  the  purposes  directed  and  provided  for  by  the 
act  of  incorporation,  and  for  no  other  purpose  what 
ever;  and  a  contract  to  do  something  beyond  is  an 
illegal  act."  (Pearce  vs.  R.  R.  Co.,  21  How.  U.  S., 
443;  Berry  vs.  Hayes,  24  Barb.,  212;  East  Anglia, 
&c.,  vs.  Ry.  Co.,  7  Eng.,  L.  &  Eq.,  505.) 

XXXII 

By  the  transfer  of  defendant's  stock  to  the  Sugar 
Refineries  Company,  "  subject  to  the  purposes  of 
this  deed,"  the  law  forbidding  the  suspension  of 
the  absolute  ownership  of  personal  property  was 
violated. 

T. — The  board  of  the  "  Sugar  Refineries  Com 
pany  "  holds  the  stock  of  the  several  companies  by  a 
tenure  which  constitutes  an  illegal  perpetuity. 

The  board  do  not  hold  the  stock  as  owners;  in 


244  ESSAYS  AND  ADDRESSES 

terms  they  hold  it  only  "  as  trustees."  There  can 
be  no  purchase  without  a  price;  and  the  board 
neither  paid  nor  promised  a  dollar  for  the  stock. 
The  certificates  they  issued  are  merely  evidence  of 
the  holders'  title  to  the  stock,  and  right  to  the  re 
ceipt  of  a  dividend  on  it. 

2. — Holding  the  stock  as  trustees  they  hold  it  in 
perpetuity :  for  there  is  no  limit  of  time  to  their  ten 
ure,  and  neither  they  nor  the  certificate  owners  can 
dispose  of  the  stock.  (Gould  vs.  Head,  38  Fed. 
Rep.,  886.) 

3. — The  statute  provides  that  "  the  absolute 
ownership  of  personal  property  shall  not  be  sus 
pended  for  more  than  two  lives."  (i  Edmonds' 
Stat.  (2d  Ed.),  727.) 

4. — And  this  provision  is  to  conserve  an  essential 
interest  of  public  policy. 

"  A  perpetuity  is  a  thing  odious  in  the  law  and 
destructive  to  the  commonwealth;  it  would  stop 
commerce  and  prevent  the  circulation  of  property." 
(Lord  Hardwieke,  Ch.,  in  Duke  of  Norfolk's  Case, 
i  Vern.,  164;  2  Black.  Com.,  268  et  seq.;  4  Kent, 
287 ;  Fisher  vs.  Bush,  35  Hunt,  643 ;  Will  of 
O'Hara,  95  N.  Y.,  404,  422;  Schettler  vs.  Smith, 
41  N.  Y.,  328.) 

Much  more  in  a  republic  is  the  free  circulation  of 
property  the  life-blood  of  the  commonwealth;  and 
hence  the  statutory  prohibition  of  mortmains  and 
entails. 

"  All  experience  shows  that  large  accumulations 
of  property  in  hands  likely  to  keep  it  intact  for  a 


ESSAYS  AND  ADDRESSES          245 

long  period,  are  dangerous  to  the  public  weal. 
Having  perpetual  succession  any  kind  of  corpora 
tion  (joint-stock  associations)  has  peculiar  facili 
ties  for  such  accumulations.  Freed  as  such  bodies 
are  from  the  sure  bound  to  the  schemes  of  indi 
viduals  —  the  grave  —  they  are  able  to  add  field  to 
field,  and  power  to  power,  until  they  become  en 
tirely  too  strong  for  that  society  which  is  made  up 
of  those  whose  plans  are  limited  to  a  single  life." 
(Central  R.  R.  Co.,  40  Ga.,  629.) 

5. — The  need  of  a  strict  and  punitive  enforcement 
of  the  statutes  forbidding  perpetuity  against  cor 
porations  by  revocation  of  their  charters  is  easily 
demonstrated,  if,  indeed,  it  be  not  obvious.  Every 
act  of  incorporation  creates,  ex  necessitate  rei,  a 
perpetuity  in  a  certain  sense.  A  corporation  may 
be  made  practically  immortal.  It  may  survive  a 
hundred  consecutive  lives.  So  long  as  it  subsists  it 
holds  and  may  hold  its  property,  real  and  personal, 
from  alienations  and  exchanges.  This  possibility 
the  law  recognizes  and  has  to  permit.  It,  therefore, 
provides  at  the  outset  limitations  upon  the  property- 
holding  capacity  of  corporations.  It,  moreover, 
insists  that  such  property  shall  be  actively  used, 
and  that  the  world  outside  the  corporation  shall 
receive  the  benefits  growing  from  the  use  of  such 
property  in  some  form  of  commerce,  investment  or 
production.  Hence  arise  the  statutes  that  provide 
for  the  annulment  of  corporate  charters  in  cases  of 
non-user. 

If  an  individual  attempts  to  impose  a  perpetuity 


246  ESSAYS  AND  ADDRESSES 

upon  his  property,  either  by  deed  or  will,  there  are 
numerous  influences  that  are  immediately  brought 
to  bear  to  procure  the  destruction  of  such  perpetuity. 
The  interests  of  heirs  and  next  of  kin  and  credi 
tors  are  directly  asserted  to  procure  the  annulment 
of  the  illegal  instrument.  But  in  the  case  of  a 
corporation  these  disturbing  causes  are  in  most  cases 
absent.  Stockholders,  so  long  as  the  business  of 
the  corporation  is  attended  with  profit,  will  not  com 
plain,  even  if  such  a  disposition  of  the  property  of 
the  corporation  has  been  made  as  is  prohibited  by 
the  statute.  They  will  rather  conspire  together 
and  co-operate  with  each  other  to  uphold  the  un 
lawful  disposition. 

It  is  not  to  be  believed  that  the  astute  and  learned 
minds  that  devised  the  scheme  put  in  operation  by 
the  trust  deed,  had  forgotten  or  overlooked  the 
statutes  against  perpetuities.  They  proceeded  upon 
the  theory  that  the  interests  of  all  the  parties  to 
such  deed  would  prevent  the  question  of  its  legality 
ever  being  raised.  It  was  for  the  advantage  of  the 
stockholders  and  the  trustees  that  the  terms  of  the 
trust  should  be  carried  out.  It  was  inconsistent 
with  the  interest  of  very  stockholder  to  attack  the 
trust  and  assert  its  invalidity,  but,  as  an  additional 
safeguard  against  possible  caprice  or  resentment  on 
the  part  of  stockholders,  the  scheme  of  the  trust 
provided  that  the  trust  itself  should  be  the  stock 
holder.  Whether  or  not  the  trust,  the  Sugar  Re 
fineries  Company,  be  in  effect  a  corporation  in  it 
self,  the  main  quality  of  a  corporation  was  imparted 


ESSAYS  AND  ADDRESSES          247 

to  it  —  perpetual  succession.  The  attempt  was 
made  to  give  it  immortality  for  the  purpose  of 
maintaining  an  unlawful  suspension  and  perpetuity, 
and  upon  the  unlawful  scheme  of  suspension  the 
trust  itself  was  made  to  rest. 

It  will  not  aid  the  contention  of  the  defense  to  as 
sert  that  the  statute  vindicated  itself,  and  that  the 
attempt  to  create  an  unlawful  suspension  was  fu 
tile,  and  that  none  in  fact  was  created,  because  none 
could  be  created. 

The  stock  was  actually  delivered  to  the  trustees 
under  the  deed,  and  the  trustees  assumed  and  en 
tered  upon  their  trust,  unlawful  though  it  was.  All 
the  parties  concurred  in  the  combination  and  co 
operated  to  make  it  effective. 

The  reasoning  of  Mr.  Justice  Peckham,  in  pre 
senting  the  decision  of  the  Court  of  Appeals  in  a 
recent  case,  is  convincing  against  the  theory  that  the 
statute  vindicated  itself. 

"  The  argument  is,  the  corporation  would  answer 
a  claim  to  forfeit  the  charter  by  the  fact  that  the 
charter  precluded  it  from  taking  such  property,  and, 
therefore,  as  it  could  not,  it  had  not  done  so.  I  do 
not  see  the  force  of  the  argument.  The  charter 
may  preclude  the  rightful  taking  of  the  property 
by  the  corporation  and  may  prevent  the  legal  title 
from  vesting  in  it,  but  that  has  nothing  to  do  with 
the  fact  that,  nevertheless,  the  corporation  has,  as  a 
physical  act,  taken  the  property  and  may  be  insist 
ing  upon  its  right  to  keep  it  as  a  matter  of  law.  In 
such  case  can  there  be  any  doubt  that  the  corpora- 


248  ESSAYS  AND  ADDRESSES 

tion  has  taken  and  is  holding  the  property  as  its 
own,  and  in  defiance  of  the  charter,  although  the 
rightful  owner  of  the  property  may  thereafter  ob 
tain  his  own?  The  fact  that  he  does  obtain  it  is  no 
answer  to  the  other  fact  that  the  corporation  had 
taken  it,  nor  is  it  any  legal  answer  to  the  claim  of 
forfeiture  of  the  charter  on  the  part  of  the  State, 
that  it  was  unsuccessful  in  continuing  to  hold  the 
property  against  the  charter  provisions."  (In  the 
Matter  of  McGraw,  in  N.  Y.,  106.) 

Wherefore,  the  only  possible  procedure  by  which 
the  statute  against  perpetuity  can  be  enforced  in 
this  case,  and  the  policy  of  the  law  vindicated,  is  an 
action  by  the  People,  not  to  set  aside  the  trust  deed, 
for  the  People  have  no  property  interests  that  would 
warrant  such  a  suit  by  them,  but  an  action  to  annul 
and  dissolve  the  corporation,  under  the  statute. 

C 

The  judgment  should  be  affirmed. 


INDEX 


INDEX 


INDEPENDENCE     OF     THE     SOUTH 

ABOLITIONISM,    crusade    of,     15. 
Absolute   power,    no    interest    safe 

against,    23. 

Administration,     unfriendly,     24. 
Alabama,  independent  republic,  12. 
American    liberty,    only    safeguard 

of,  23. 
Austrian    absolutism,    22. 

BOTELE'S    proposition,    24. 

CHARLESTON,  compulsory  collec 
tion  of  revenues  at,  25. 

Civil  war  about  to  be  perpetrated, 
13. 

Constitution,     integrity     of,     safe 
guard     of     liberty,     23. 
superseded     by     Lincoln's     plat 
form,    25. 
war    fatal    to,    28. 

Constitution's  recognition  of  slav 
ery,  15- 

DISCORD,  sectional,   14. 

FLORIDA,    independent   republic,  12. 
Fugitive      slaves,      restitution      of, 
19-20. 

GEORGIA,  independent  republic,   12. 
Government,    south's    support    of, 
13- 

HUNGARY,    revolt    of,    22. 
INDEPENDENCE    of    the    South,    n- 

Independent  republics  of  South 
Carolina,  Mississippi,  Flor 
ida,  Alabama,  Georgia, 
Louisiana,  12. 

Invasion    of    rights,     14. 

Ireland's    wrongs,    28. 

Irrepressible   conflict,    25. 

Italy,    revolutionists    of,    22. 

JEFFERSON,    a    secessionist,    21-22. 

LIBERTY,  American,  only  safe 
guard  of,  23. 


Lincoln,    an    obnoxious    ruler    of 

an     unwilling     people.     26. 
election    of,    a    proclamation    of 
war,    23. 

Lincoln's       platform       supersedes 
Constitution,    25. 

Louisiana,     independent     republic, 


MISSISSIPPI,  independent  republic, 
12. 

NEW      ENGLAND,      importance      of 
manufacturing    interests,  16. 
navigation    of,    23. 
North,  denied  no  facility  of  trade 

by  South,  13. 
slavery  in  the,  14. 
Virginia's  contribution  to.  14. 

PACIFIC  propositions,  South's  sup 
port  of,  24. 

iPeace  or  war.  issue  before 
the  country,  12. 

Pennsylvania,  iron  interests  of, 
23. 

Power,  absolute,  no  interest  safe 
against,  23. 

REPUBLICAN     party    insistent      for 

war,    25,    26,    28. 
Republics,    independent,     12. 
Rights,    invasion    of,    14. 

SECESSION,    26-27. 

of    colonies,    21. 

public    interest    in,    u. 

South's    right    of,    27. 

Virginia's   right  to,   27. 
Secessionist,    Jefferson    a,    21-22. 

statement  of   their  cause,    11-31. 

Washington    a,    21-22. 
Sectional    discord,    14. 
Slave-holding      states,      grievances 

of,     1 6,    et    seq. 
Slavery,     22,    23. 

constitution's       recognition       of, 
IS- 

importance   of,    15. 

in    the    North,    14. 

in    the    South,    14. 

impositions    upon,    15. 


251 


252 


INDEX 


pecuniary   value   of,    15. 

South'*  vindication  rests  not  on 

issue    of,     1 6. 
Slaves,      restitution      of      fugitive, 

19-20. 
South,    a    unit   in   resistance,   29. 

cause    of,    21. 

defense    of,    20-21. 

demands     protection     from     sec 
tional    despotism,    22. 

denies     North     no     facility     of 
trade,    13. 

grievances    of,    16,    et    seq. 

independence    of   the,    n. 

innocent    of    impending    conflict, 

13- 

rights  of,   no   longer  secure,   24. 

slavery    in    the,     14. 

social    system    "the    sum    of    all 
villainies,"     19. 

solicits    recognition,    22. 

subject    to    intolerable    tyranny, 
21. 

taxed   against   her   consent,    22. 

unconquerable,    28-29. 

took    up    arms,    why,    21. 
South's      equality     among      sover 
eigns   of  the   earth,   31. 

loyalty,    how    requited,     14. 

support    of     Government,     13. 

support    of    pacific    propositions, 
24. 

vindication      rests     not     on     is 
sue    of   slavery,    16. 
South    Carolina    denied    postal    fa 
cilities,    25. 

independent    republic,    12. 
Sovereignties,    co-equal,     27. 
Sovereignty,     State,     right    to    re 
sume,    26-27. 

Virginia's    right    to-  resume,    27. 
States,      slave-holding,      grievances 
of,    1 6,    et  seq. 

subjugation    of    retiring,    13. 

TARIFFS,   burden   of   unequal,    14. 
UNION,  idle  talk  of  preserving,  12. 

VIRGINIA'S  contribution   to   North, 

14. 

right    to    secede,    27. 
WAR,   election   of  Lincoln,  a  proc 
lamation  of,  23. 
fatal     to     Constitution,     28. 
peace  or,  issue  before  the  coun 
try,    12. 
proclamation    of,    an    overt    act, 

Republican    party    insistent    for, 

25,    26,    28. 
Washington    a    secessionist,    21-22. 


THE      SUFFICIENCY      OF      THE      NEW 

AMENDMENTS 

AMENDMENTS,   crowning   glory   of, 

39. 

earlier,    only   limitations   of  Fed 
eral   power,    36,    37. 
Amendment,   fifteenth,   46,   47,    48, 

49,    50. 

fourteenth,    46. 
monuments    of    human    freedom 

and    progress,    51. 
radical      modifications      effected 

by,     35,     36. 

sufficiency    of    the    new,    35-51. 
American    people    safeguarded    by 

state  and  nation,  39. 
Articles    of    Confederation,    42. 
Attainder,    bills    of,    36. 

BRONSON,    J.,    38,    note. 

CHINAMAN    shielded    from    hostile 

discrimination,     39. 
Citizens,     colored,     anxiety    as    to 

constitutional     rights,     35. 
Citizenship,     birthright    of     negro, 

39- 

national,    42-43,   44. 
of    the    State,    42. 
Confederation,     Articles     of,     42. 
Congress      'armed      with      plenary 

power,   45. 

Constitution   of    1787,    42,    43. 
Constitution,    quoted,    36,    38. 
State,    only   safeguards,    36. 
story    on   the    (note),    43. 
"Constitutional    advances,"    38. 
Contracts,    obligations    of,    36. 
Corporations,    protected    from    un 
equal    exactions,    39. 

DECLARATION  of   Independence,  37, 
Si- 

ELECTIVE    franchise,    Judge    Tour- 

g6e's    criticism    of,    45. 
Electoral    college,    47. 
Ex  post   facto    laws,   36. 

FREEDOM   of   the   press,    37. 

of    religion,    37. 

of    speech,    37. 
Freemen,    rights    of,    37. 

INDEPENDENCE,       Declaration      of, 

37.     Si. 
Invasion    of    person    or    property, 

immunity      from      arbitrary, 

38. 

"JUDICIAL    construction,"    37. 


INDEX 


253 


"LAWS,  no  State  shall  deny  to 
any  person  the  equal  pro 
tection  of  the,"  38. 

"Life,  liberty,  or  property,  no 
State  shall  deprive  any  per 
son  of,"  etc.,  38. 

MAGNA    charta,    51. 

NATION    is    supreme,    55. 
National    citizenship,    42-43,    44. 
Negro,     citizenship     birthright     of, 

39; 

secured   an   impartial    jury,    39. 
suffrage,    45,    et    seq. 
Nullification,     40,     et    seq. 

PEOPLE,      American,      safeguarded 

by  State  and  nation,  39. 
Poor,  equal   law  for  rich  and,   39. 
Press,    freedom   of   the,   37. 

RELIGION,  freedom  of,  37. 

Rich,  equal  law  for  poor  and,  39. 

SECESSION,    40    et.    seq. 

no    longer    practicable,    42. 
Searches     and     seizures,     security 

against    unreasonable,    37. 
Shannon    v.    Hill    (note),    43. 
Slaughter-house  cases   (notes),  43, 

Slavery,   effaced,    39. 
Slaves,    fugitive,    49. 
Sovereignty,    State,   40. 
Speech,    freedom    of,    37. 
State    autonomy,    46. 

citizenship    of,    42. 

sovereignty,    40. 

TOURGEE,    Judge,    35,    36,    38,    40, 

41,     45,     46,    48,    49.    50. 
Trial,    right    of   speedy,    37. 

UNION,    allegiance    to,    43-44. 

YARBOROUGH,   exports   (notes),   45, 

47- 

THE    SOLDIER    THE    FRIEND    OF    PEACE 
AND     UNION 

ABOLITION    agitation,    58. 
Alien    and    sedition    laws,    75. 
America,    conquest    of,    impossible, 

79- 
Annapolis,    conference    at    (1786), 

70. 

Antietam,    62-63. 
Armies,     contended,     intermingled 

for  aid,    63. 
Austria-Hungary,    69. 


"BLOODY    shirt,"    66. 
Bourbons,    Vendeean,    69. 

CALIFORNIA   annexed,    71. 

Catlin,    General,    55. 

Cerro    Gordo,    58. 

Chatham,    Lord,    boast    of,    69. 

Chippewa,    58. 

Constitution,    66. 

Confederacy,  weakness  of  its  plan 
of  government,  74-75. 

Confederate    soldier,    all    was    lost 

to,    61. 

fealty  to   Union,    70. 
tribute    of    a,    67. 
vindicates    sincerity    of    convic 
tion,    62. 

soldiers,   first   reunion  of  Union 
and,   55. 

Conciliation,   benefits  of  policy  of, 
70. 

Constitution,    politicians    nullified, 
58. 

FALKLAND,    Lord,    59. 
Federal    domination,    65. 
Florence,  69. 
Fronde,    war    of,    68-69. 

GENOA,   69. 

Germany,    united,    69. 
Grant,   Ulysses   S.,    62,   63,   79. 
Great    Britain,    69. 
Greene,    Fort,    79    (note). 
Nathanael,    78. 

HAMILTON,  Alexander,   79. 
Hayes-Tilden    controversy,    77. 

IRELAND,   69,   70. 
Irrepressible   conflict,    75. 
Italian    nationalism,    69. 

JACKSON,    Andrew,    79. 

"Stonewall,"     79. 
Jefferson,  Thomas,   71,   79. 
Johnston,    Joseph    E.,    63. 

LEE,  Robert  E.,  59,  62,  63,  79. 

surrender    of,    63. 
Long  Island,  Battle  of,  79  (note). 
"Lost   Cause,"    63,    74. 
Louisiana,    deliverance    of,    65. 

loyalty    of,    66-67. 

purchase,   71. 
Lucknow,    69. 

MARSHALL,    John,    71. 

McDonough,    79. 

Meagher,    Thomas    Francis,    63. 


254 


INDEX 


Memorial  Day,  first  joint  observ 
ance  of,  by  Union  and 
Confederate  soldiers,  55. 

Mexico,    Capital    of,    70. 

Missouri    Compromise,    58,    75. 

Monroe    Doctrine,    71. 
James,    71. 

Montgomery,    Richard,   78. 

NAPOLEON,    68-69. 

National   unity   developed  by  war, 

68. 

Negro    suffrage,    73. 
New    Orleans,    contending    armies 

fraternize    in,    65. 
New  York  determined  compact  of 

union,    70. 

Norway    and    Sweden,    69. 
Nullification    (note),    59. 

PHILADELPHIA,   Convention   at,   70. 
Politicians     fomented     war.     58. 

nullified     Constitution,     58. 
"Prostrate    State,"    66. 
.Pryor,    Roger    A.,    on    battlefield, 

63. 
Putnam,    Israel,    78. 

RALEIGH,    capitulation  of,   64. 
Randolph,    John,    70. 
Reconstruction,     64,     65. 
Revolution,   heroes  of,   79. 

French,    69. 
Rome,   69. 

SADOWA,    victory    of,    69. 
Scotland.   69.   70. 
Scott.    Winfield,    58.    70. 
Secession,    57,    58,    72,    74,    75. 
slavery    the    occasion    of,    75. 
war  of,   soldiers   not  responsible 

for,    62. 

Sherman,    William   T.,    63,    79. 
Slavery,     58,     72,     76. 

occasion    of    secession,    75. 
Soldier,     Confederate,     cause     for 

which    he    fought,     60-6 1. 
Confederate   free   from  reproach 

of  conscious   wrong,    61. 
the   friend   of  peace   and  union, 

55-79. 
Union,     cause     for     which     he 

fought,    60-6 1. 
Soldiers   not   responsible    for   war, 

57    et  seq. 

South,   causes  of  its  resistance  of 
the    Federal    Government  in 
1861,    76-77. 
desolated,   61. 

only   a   geographical    expression, 
67. 


strength     and     security,     where 

found,    72. 
Southern    statesmen,    services    of, 

70-71. 

South's   part    in   building   the    Un 
ion,   70. 
South      Carolina,      troops      occupy 

capitol    of,    64. 
Sovereignty,     State,    60,    66. 
State,    autonomy    of,    65. 
"prostrate,"  66. 
sovereignty,   60,   66,    72,    75,    76, 

Subjugation   of    1849,   69. 
Suffrage,    negro,    73. 
Supreme   Court,    58. 
Sweden    and    Norway,    69. 

TARIFF    of    1833,    75. 
Texas,    annexation,    71. 
Tilden-Hayes    controversy,    77. 

UNION,   idea  originated,  70. 

plan    propounded,    70. 

re-established,    66. 

soldiers,  first  reunion  of  Con 
federate  and,  55. 

supreme    reward    of,    67-68. 
South's  fidelity  to,   71-74. 

VENICE,   69. 

Vendeean    Bourbons,    69. 
Virginia     determined    compact     of 
union,    70. 

WAR,   inhumanities   of,   cabinet  re 
sponsible    for,    62. 
of     secession,     soldiers     not     re 
sponsible    for,    62. 
of    1812,    71. 
the     consummation     of     human 

woe,    60. 

politicians   responsible    for,    62. 
Washington,     George,     70,     78. 
Waterloo,    69. 

THE    GENERAL    GRANT    ANNIVERSARY 
APPOMATTOX,    84. 
DONELSON,    Fort,   84. 

GRANT,  General,  an  historic  fig 
ure,  86. 

anniversary,    83-86. 

as    President,    85. 

campaign  in  the  East,  84;  in 
the  West,  84. 

his  service  to  the  Union,  85- 
86., 

magnanimity  and  clemency  of, 
85. 

simplicity   of    his   character,    86. 


INDEX 


255 


JOHNSTON,   Joseph   E.,   84. 
LEE,  Robert  E.,  84. 
NEGRO    suffrage,    85. 

PORTER,    General    Horace,    83. 
Pryor,    Judge     Roger     A.,     speech 
of,   83-86. 

VlCKSBURG,    84. 

THE      RECIPROCAL      OBLIGATIONS      OF 
THE     BENCH     AND     THE     BAR 

BACON    (quoted),   90. 

Bar,    reciprocal    obligations    of   the 

Bench    and,    89-92. 
Bench  and   Bar,    reciprocal   obliga 
tions    of   the,    89-92. 
duty    to    Bar,    90,    91. 
frailties    of,    92. 
Brief,    attraction    of,    89. 

CHOATE,    Judge    Rufus,    91. 
Court,     advocate     entitled     to     at 
tention    of,    90. 

how  to   gain   attention  of,   90. 
Counsel,   duty   of,  89. 

ELOQUENCE,  forensic,  89. 
FORENSIC  eloquence,  89. 
HORATIAN  precept,  imperative,  90. 

JUDGE,     amenities    of    the    gentle 
man    not    incompatible    with 
the   dignity  of   a,   91. 
his  duty  to  case,   91. 
Judicial    office,    awful    responsibil 
ity   of,    92. 
functions   of  the,  92. 
Justice,    delay    of,    91. 
denial  of,  91. 
essential  part  of,  90. 
sale    of,    91. 

LAW  school,  annual  dinner  of  the 

university,   89. 
Lawyer,    the    reward    of,    92. 

MAGNA   Charta,   91. 

UNIVERSITY    Law    School,    annual 
dinner    of    alumni    of,    89. 

THE   BAR   AND   FORENSIC   ORATORY 

ALBANY  Law   School,   95. 
Authors,    dangers    of    inferior,    99, 
100. 


value  of  the  master,   99,   100. 

BACON,    Sir   Roger,    106. 

Bain,    Professor,     103. 

Bar,    consummate    distinction    of, 

117. 

eloquence   of  the,    108   et   seq. 
success   at,   how    attained,    95    et 

seq. 
the,    and    forensic    oratory,    95- 

118. 

Bolingbroke,    Lord,    116. 
Burke,    Edmund,    in. 

CAUSE,    how   to   win   your,    no   et 

seq. 

Choate,     Rufus,     115. 
Cicero,   97,   98. 
Commentaries,    Kent's,    103. 
Court,    respect    to,    107. 
Cross-examination,    care    in,    107. 

DELIVERY,   precepts   of,    116. 
Demosthenes,    104,    114,     116. 

ELOQUENCE,   aspects  of,   108,   109. 
how    acquired,     114    et    seq. 
importance    of   delivery   in,    116. 
newspapers    effect    on,    113. 
stenographer's   effect    on,    113. 
the    art     of    persuasion,     109. 
what  constitutes   effective,    113. 
Emmet,    Robert,    108. 
Erskine,     James     (Lord     Grange), 

109,    US- 
Evidence     and    procedure,    knowl 
edge   of   the   law    of,    neces 
sary,    99. 

FACTS,  to  master,  the  most  valued 
equipment  of  a  lawyer,  101. 

Folger,    102. 

Forensic  genius  identical  with 
those  of  military,  107. 

Fox's   test   of   a   speech,    112. 

Franklin,   Benjamin,    116. 

HALL,    Robert,    1 1 5. 
Henry,    Patrick,    115. 
Hobbes,    103. 
Hoffman,    108. 
Hume,    David,    116. 

Institutes     of     Oratory,     107. 

JOHNSON,    Dr.    Samuel,    103. 
Juries,     Rights    of,     109. 
Jurisprudence,    intricacy    of    mod 
ern,    98. 

Jury,    respect    to,    107. 
Justinian   age,   98. 


256  INDEX 

KENT'S    Commentaries,    103. 


LAW,    end    and    aim    of,    117,    118. 

a    noble    vocation,     117. 
"Lawyers,     first     orator     among," 

117. 

Leading    Cases,    Smith's,     102. 
Locke,    John,    103. 

On   the  Conduct   of  the    Under 
standing,  1 06. 

MACAULAY,   Lord,    115. 
Macintosh,     Sir    James,     112. 
Mansfield,    100. 
Marshall,    John,    100. 
Memory,  Art  of,   105. 

NEWSPAPER,     effect     on      forensic 
eloquence,    113. 

O'CoNNELL,    Daniel,    115. 
On    the    Conduct    of    the    Under 
standing,    1 06. 
"Orators,     first     lawyer     among," 

117. 

Oratory,   aim   of,    in. 
forensic,    108    et    seq. 

PELTIER,    112. 

Persuasion,     art     of,     how     com 
passed,     IIO,    III. 
Pinkney,    108. 
Portia,    97. 
Prentiss,     115. 
Press,    freedom   of,    112. 

QUINTILIAN,     102,     105. 

RAPALLO,     102. 

Reading,    how    shall,  it    be    done? 

102,    et    seq. 

value    of,    to    the    lawyer,    102. 
Reports,    value    of,    to    the    prac 
ticing    lawyer,     100    et    seq. 
Rights   of   Juries,    109. 

SHAKESPEARE    (quoted),    97. 
Smith's  Leading  Cases,   102. 
Stenographer,    has   effect   on  foren 
sic  eloquence,   113. 

TRIAL,    requisites    for    the    success 

in,    107. 
Thucydides,     104. 

WEBSTER,    Daniel,    115. 
Whately,    Archbishop,     107. 
Whitefield,    George,    116. 
Witnesses,    respect   to,    107. 
Wirt,    William,    108. 


INFLUENCE      OF      VIRGINIA      IN      THE 

FORMATION      OF      THE      FEDERAL 

CONSTITUTION 

AMENDMENT,   Tenth,    139. 
Amendments,    first    eight,    139. 
American     Commonwealth     (quot 
ed),     145. 
Assembly,    General,    124. 

"BACON'S    Rebellion,"    124. 
Bancroft,     George     (quoted),     131- 

132. 

Bill    of   Rights,    134,    139. 
Blair,    133,    136. 
Boregeaud,      Dr.      (quoted),      135, 

142. 

Brougham,    Lord    (quoted),    122. 
Bryce,   James    (quoted),    122,    145. 
Byrne,    142. 

CALIFORNIA,    147. 
Chase,    Justice,    141, 
Clark,  George  Rogers,   127. 
Commonwealth     (Va.)     v.     Caton, 

143- 

Confederacy,    Southern,    147. 
Confederation,     Articles     of,     127, 

.  136. 

articles  of,  a  "league  of  friend 
ship,"  129. 

futility    of    Articles    of,    130. 
Congress,    General,     125. 
Constitution,     Federal,     an    evolu 
tion,    123. 
at    once    Federal    and    National, 

136. 

credit  of  construction  of, 
awarded  to  Virginia,  122, 
146. 

Hamilton's   plan,    138. 
influence     of     Virginia     in     the 

formation  of,    121-147. 
interest    manifested    in,    122. 
James   Bryce   on,    122,    145. 

Federal,     Lord     Broughton     on, 

122. 

New   Jersey   plan,    138. 
only    Judicial    Department    com 
petent    to    interpret,    140    et 
seq. 

portion  of,  regulating  relations 
of  Union  and  States  wholly 
original,  136. 

rivalry    as     to     credit     of     con 
struction    of,    122. 
retrospect     of     conditions     from 

which    evolved,    145,    146. 
Federal,    supreme    autocracy    of 

the  Executive,    121. 
Virginia    plan,     1 38. 
Virginia  plan  adopted,   138,   146. 


INDEX 


257 


Virginia's     imperishable     monu 
ment,    146. 

wholly    American,    135. 
William    E.    Gladstone    on,    122, 

Constitutional        Convention        of 

1787,    132    et   seq. 
Convention   of    1787,    123. 
Cooley,    143. 
Cromwell,    Oliver,    124. 

DECLARATION       of      Independence, 

125. 
Dutch   republic,    135. 

EASTERN  States  accede  to  Span 
ish  occlusion  of  Mississippi 
River,  128. 

Executive    power    regal,    140. 

FISKE,    Professor    John    (quoted), 

i37»    138. 
Florida,    accession    of,    146. 

GLADSTONE,  William  E.  (quoted), 
122,  123. 

Government  departments  are  co 
ordinate  and  independent, 


HAMILTON,    Alexander,    138. 
Hare,    Judge    (quoted),    137,    138. 
Henry,    Patrick,    133. 
Hildreth,    Richard    (quoted),    133. 

ILLINOIS  part  of  Northwestern 
territory,  128. 

Indian   warfare,    125. 

Indiana  part  of  Northwestern  ter 
ritory,  128. 

JAY,    John,    128. 

Jefferson,    Thomas,     125-126,     133. 

Judicial    Department    a    safeguard, 

140    et   seq. 

interpretation    of    legislative    en 
actment,     origin     of,     143. 
Rhode   Island's   claim  to,    143. 
Virginia's      claim     to,      143-144, 

146. 
Judiciary,    American    respect    for, 

141. 

power  of,  to  interpret  legislative 
enactment  the  admiration  of 
foreign  jurists,  142  et  seq. 

KENT,  James,   143. 

LEE,    Richard     Henry,     resolution 

of,    125. 
Robert   E.,    147. 
Legislature     subject      to     popular 

will,    140. 


"Lost   Cause,"    147. 
Louisiana   Purchase,    146. 
Lutherans,    German,    124. 

MADISON,  James,  133,  134,  136, 
i37,  138. 

Magna    Charta,    143. 

Maine,    Sir    Henry    (quoted),    142. 

Marbury    v.    Madison,    144. 

Marshall,  John,  121,   133,  144,  145. 
develops     Constitution     to     full 
power,    145. 

Mason,  George,   133,  134,   136,  139. 

Mayflower,     123. 

Michigan  part  of  Northwestern 
territory,  128. 

Mississippi  river,  occlusion  of,  by 
Spanish  Government,  128- 
129. 

Virginia   opposes    Spanish   occlu 
sion    of,    129. 

Monongahela,    125. 

Monroe    Doctrine,    147. 
James,     133- 

NEW   HAMPSHIRE,   constitution   of, 

126. 
Northwestern    territory,    Virginia's 

right    to,    127. 

OHIO  part  of  Northwestern  ter 
ritory,  128. 

PARLIAMENT,    143. 

Pendleton,    133. 

Petition    of    Rights,     143. 

Point    Pleasant,    125. 

Presbyterians,     Scotch-Irish,     124. 

RANDOLPH,    John,    133. 

Peyton,     125. 

Restoration,    Virginia's    status    un 
der  the,    124. 
Rights,     Bill    of,    126. 

Virginia's    declaration    of,    126. 

SOUTH   CAROLINA,   constitution  of, 

126. 
Stamp    Act,    Virginia's    opposition 

to,    125. 

State    rights,    136-137,    140,    146. 
rights,    how    conserved,     140    et 

seq. 
"States,     indestructible    union     of 

indestructible,"     121. 
rights    nullified,    121. 
sovereignty    of,    134. 
the     united     colonies     are     and 
ought    to    be    free    and    in 
dependent,"    125. 
Stevens,    Dr.    Ellis    (quoted),    135, 

142. 

Story,   Joseph    (quoted),    123,    143. 
Swiss    Confederacy,    135. 


258 


INDEX 


TEXAS,  independence  and  acquisi 
tion  of,  147. 

Tocqueville,    De    (quoted),    142. 

Trevett    vs.    Weedon,    143. 

Trumbull,  Jonathan  (quoted), 
131-  • 

UNITED  STATES'  rank  as  a  ruling 
power,  121. 

VENICE,    republic    of,    135. 
Virginia    Bar   Association,    address 
before,    121. 

constitution  of,  126;  model  for 
Federal  constitution,  126, 
132,  136,  138,  146. 

credit  of  construction  of  Fed 
eral  Constitution  awarded 
to,  122  et  seq. 

declares  her   independence,    125, 

132. 
demands     stronger     constitution, 

130,    132,    146. 
demands      guarantees      of      the 

rights    of    the    states,     139, 

140. 
influence    of,    in    the    formation 

of  the  Federal  Constitution, 

121-147. 
invites   sister   States   to   a  union 

of     interests      (1773),     125, 

132. 

proposes  renunciation  of  al 
legiance  to  the  Crown,  125, 

132. 
Virginians      .confront       Cromwell, 

124. 
extorted  concessions  (1621),  123- 

124. 

protest    (1624),    124. 
Virginians      selected      their      own 

governor    (1635),     124. 
Virginia's    additional    contribution 

to    federal    power,    128. 
plan  of  government  first  in  his 
tory      of      self-government, 

126,    132,    136,    146. 

WASHINGTON,     George,     125,     133, 

147. 
labors  of,  for  stronger  union  of 

States,    130-131. 
Wisconsin    part    of    Northwestern 

territory,    128. 
Wythe,    Chancellor,    133,    144. 

THE    PEOPLE    OF    THE    STATE    OF    NEW 

YORK      VS.,     THE      NORTH      RIVER 

SUGAR     REFINING    COMPANY 

ABSOLUTE  ownership  of  property 
must  not  be  suspended,  243- 
248. 


Agreement   or   combination   is   the 
vice,    184-185. 

Agreements,  law  looks  to  the  gen 
eral      tendency      of      power 
conferred,    184. 
limiting    production    illegal,  183- 

184. 

tend  to  prevent  free  competi 
tion,  184. 

tending  to  restrain  natural  ri 
valry  against  public  policy, 
184. 

Anne,    statute    of,    limiting    copy 
right,    150. 

Federal  and  State  laws  protect 
monopolies,  151. 

Appellant   is   estopped    (citations), 
iS3. 

Appellant's    main    argument,     198- 
199- 


BLACK   FRIDAY,    195. 

CAPITAL,     tendency     of,    'to     seek 

highest    profits,     199. 
Charter,      language     employed     in 
the    act    of,    defines    powers 
(citation),    161. 

of  a  corporation  the  measure 
of  its  powers  (citations), 
162. 

violation   of,  to  be   punished  by 
a    judgment    of    ouster    and 
dissolution     (citation),     162. 
Charters   and    franchises    are    con 
tracts     (citation),     156. 

Legislature's    view,    in    granting 

(citation),    155-156. 
Combination     a     consolidation     of 
corporations,    232-233. 

any,  to  do  an  act  injurious 
to  trade  is  a  criminal  con 
spiracy,  207. 

character  of,  determined  by  in 
strument  constituting  it, 
183. 

created  by  Sugar  Refining  Co. 
deed  a  criminal  conspiracy, 
182. 

formed  of  corporations,  215- 
217. 

impotent  to  control  competi 
tion,  198-199. 

need  not  be  complete  monopoly, 
194. 

otherwise  lawful,  a  crime  if  its 
intent  is  monopoly,  207. 

will  be  held  to  intend  obvious 
effect,  225. 


INDEX 


259 


Combinations  and  agreements, 
when  unlawful,  172-182. 

courts  will  not  stop  to  inquire 
injury  inflicted  upon  pub 
lic,  183. 

effect   of   adjudications    on,    181. 

legitimate  vs.  unlawful,  206- 
208. 

may  indefinitely  increase  prices, 
how,  197. 

nascent    rivals    crushed    by    es 
tablished,    20 1. 
Commodities,    what   controls  prices, 

i 86   et  seq. 
Common  Law  adequate  to  destroy 

trust-combinations,     151. 
Competition     destroyed      fatal     to 
trade    (citation),    170. 

if  excluded,  and  one  trust  con 
trols,  what  follows?  210- 
211. 

restriction  of,  contrary  to  pol 
icy  of  New  York  State, 
180-181. 

the    right    to    exclude,    injurious 

to    public     (citation),     170. 
Constitution   of   the   company,  227- 

228. 
Contract,    a,    in   total    restraint    of 

trade    is    void,    179. 
Copartnership    liability    ineffectual 

to    efface    illegality,    206. 
Copper    syndicate,    200. 
Corporate     act,     unauthorized,     il 
legal,    162. 

charters  annulled  in  case  of 
non-user,  245. 

franchise,  rule  prevails  in  quo 
warranto,  to  forfeit  (cita 
tions),  153. 

Court  must  determine  uncontro- 
verted  state  of  facts  (cita 
tions),  153. 

direct  a  verdict,  if  proof  of 
fact  be  preponderating  (ci 
tation),  153. 

privileges  conditional  upon  per 
formance  of  duties  en 
joined  (citation),  157. 

rights  and  powers  the  correla 
tives  of  corporate  obliga 
tions  (citation),  158. 
Corporation,  act  of,  in  violation 
of  law  forfeits  franchises 
(citations),  160. 

its    constituents    the    act    of    the 

(citation),    164-165. 
Corporations      can      exercise      no 
power    not    expressly    grant 
ed    (citations),    162. 


make  no  contract  not  necessary 
for  purposes  of  charter, 
231-232. 

cannot  be  created  merely  to 
consolidate  with  another, 
231. 

consolidate  their  funds  unless 
authorized,  233-235. 

contract  made  by  a,  in  viola 
tion  of  its  charter  is  ultra 
vires  and  void  (citation), 
164. 

with,  may  be  binding  although 
an  abuse  of  powers  (cita 
tion),  163. 

of,  unauthorized  are  illegal  (ci 
tation),  163. 

creation  of,  an  act  of  sover 
eignty,  155. 

court  will  construe  upon  its 
manifest  tendency,  185. 

doing  unauthorized  acts  may 
forfeit  franchise  (cita 
tions),  163. 

domestic,  charter  may  be  vacat 
ed,  152. 

existence  of,  may  be  annulled 
when  (citations),  160. 

grant  a  pledge  to  public  (cita 
tion),  159. 

has  no  authority  to  do  acts  in 
dictable  by  public  law,  209. 

if  utility  be  lessened,  it  is  a 
forfeiture  (citation),  162. 

may  be  dissolved  (citation), 
iS7. 

for  breach  of  trust  (citation), 
158. 

when  exercising  a  privilege  not 
conferred  (citation),  164. 

may  incur  a  forfeiture  of  fran 
chise  by  doing  an  illegal 
act  (citation),  163. 

must  apply  funds  as  provided 
in  act  of  incorporation,  243. 

be  managed  in  interest  of 
shareholders,  241. 

come  up  to  substantial  objects 
for  which  instituted  (cita 
tion),  158. 

demean  itself  faithfully  (cita 
tion),  157. 

objects  for  which,  created  (ci 
tations),  155. 

primary  object  of  the  institu- 
tution  of  (citations),  157. 

public  have  an  interest  that  it 
shall  not  transcend  powers 
(citation),  159. 


260 


INDEX 


public  has  interest  in  proper 
administration  of  powers 
(citation),  163. 

statutory,  is  limited  as  to  all 
its  powers,  230-231. 

what    it    undertakes    and    agrees 

(citation),     158. 

Corporations,  Attorney-general's 
authority  in  relation  to  (ci 
tation),  164-165. 

relation  of,  to  company,  228- 
230. 

rule  of  construction  in  cases  of 
(citation),  161. 

that  become  monopolies  a  pub 
lic  menace,  180. 

transfer  of  control  illegal,  236- 
239- 

what    constitute,     219-224. 

where,  abuse  powers  by  acts 
ultra  vires  State  may  re 
claim  charters  (citation), 
164. 

Corporators  are  the  corporation, 
219-224. 

DEFENDANT  corporation  has  for 
feited  its  charter,  why,  235- 
239,  241-242,  248. 

did   an   act   ultra   vires,    227. 

guilty  of  excess  of  powers,  227. 

moves  Court  to  direct  verdict 
in  its  favor,  151-152. 

party  to  the  combination,  217- 
219. 

violated   condition   of   franchise, 

225-226. 

Defendant's  charter,  forfeiture 
of,  155- 

EVIDENCE   competent   to   prove   es 
sential  fact,    154. 
solitary     exception     to,      plainly 
untenable     (citations),     154. 

FORFEITURE   by   acts   ultra   vires — 

Bank,  chartered,  and  acts  ul 
tra  vires  (citation),  166. 

embezzlement  of  funds  on  de 
posit  with  (citation),  166. 

neglect  of,  to  make  report 
required  by  law  (citation), 
1 66. 

violating  a  restriction  on  rate 

of    interest    (citation),    166. 

College,      chartered,      and      acts 

ultra    vires    (citation),    166. 

Corporation   dividing   Legislative 

appropriation      with      agent 

(citation),     166. 


Corporation  holding  property  in 
violation     of     restraints     of 
charter    (citation),    167. 
Further    grounds    of,    167. 
Insurance   company   carrying   on 
banking      operations      (cita 
tion),     166-167. 

Railroad  company  ceasing  to 
operate  a  part  of  its  route 
(citation),  167. 

company,  extortionate  charges 
by  (citation),  166. 

company,  if  a,  abandons  a 
portion  of  its  line  (cita 
tion),  167. 

company  keeping  records,  of 
ficers,  etc..  in  another 
State  (citation),  166. 

omission  to  make  report  re 
quired  by  law  (citation), 
1 66. 

company,    unauthorized     lease 
of    its    road,     rights,     fran 
chises    (citations),    167. 
common   law    ground   still   avail 
able    (citation),    165. 
Franchises,        corporate,        become 
void  in  case  of  misuse,  158. 

granted    in    trust,    156. 

may  be  forfeited  by  acts  and 
contracts  ultra  vires  the 
corporate  authority,  161. 

may  be  lost  by  misuser  or 
nonuser  (citations),  159. 

misconduct  of  corporators 
operates  a  forfeiture,  219, 
223-224. 

subject  to  condition  that 
privileges  and  franchises  be 
not  abused  (citation),  159. 
granted  upon  condition  that 
they  be  executed  according 
to  charter  (citations),  157. 

for     proper     use      (citations), 

157- 

grants    of,    are    conferring    peo 
ple's    rights    (citation),    156. 
may  be  forfeited   (citation),  156. 

for  breach  of  trust  (cita 
tion),  158. 

GOLD    RING,    195,    200. 

Grants,  in,  by  the  public,  noth 
ing  passes  by  implication 
(citation),  161. 

"Great  Quo  Warranto  Case,"  165. 

INCORPORATION     act     an     enabling 

act    (citation),    161. 
right    of,    in    the    nature    of    a 
contract,   240-241. 


INDEX 


261 


JOINT    STOCK    COMPANY,    228. 

Judgment    is    unimpeachable,    155. 

LABOR   cannot   withdraw    from    the 

market,     204. 

may    combine    to    better    condi 
tions,    204-205. 

tendency    of,    is   to   seek  highest 
wages,     199. 

"Large   production,"    law    of,    201. 

Law     not    to    be    hoodwinked    by 
colorable    pretenses,    185. 


MACY'S  not  a  monopoly,  202,  203. 
Man,  a,  may  not  contract  to  form 

a    monopoly,    208. 
a,    may    not    do    as    he    pleases 

with    his    own,    208. 
Mogul     Steamship     Co.,     case     of, 

179. 

Monopolies  are  bane  of  body  poli 
tic    (citation),    169. 
destructive    of    individual    right 

(citation),    169. 
detrimental     to     public     welfare 

(citation),    168. 
distinguished,    201. 
intolerable     (citation),     169. 
justly    odious    (citation),    169. 
tend    to    public    prejudice,    168. 
public    policy    opposed    to    (cita 
tion),    170. 
ruling    of     Kentucky    Court    of 

Appeals,    171. 

of    New    York    Court    of    Ap 
peals,    171. 
of     Superior     Court     of     San 

Francisco,    171. 

of     Supreme    Court    of     Cali 
fornia,     171. 
of   Supreme  Court  of  Illinois, 

171. 

of    Supreme    Court   of   Michi 
gan,    171. 

statute       against,       the       magna 
charta    of    British    industry 
(citation),     170. 
Monopoly   a    crime,    179. 

against   public   policy    (citation), 

170. 
agreement,    Lord    Campbell    on, 

183. 

tending   to,    one    illegal    (cita 
tions),     167-168. 

as     controlling     prices,     187-189. 
comprehends,    what,    195. 
control    of    State    supply    of    a 
commodity      constitutes      a, 
198. 

end     and     aim     is     to     increase 
prices,    203. 


is,  wherever  competition  is  not, 
188. 

of    copy    and     patent    rights     a 
reward   of   genius,    181. 

only     "temporary,"     200. 

opposed   to   rivalry   in   trade  (ci 
tation),    169. 

partial,    195-196. 

prices,    effect   of   "outside"   com 
petition,    196. 

partial      supply     must     meet, 
197-198. 

price    of,    the    highest,    188. 

tends    to    control    prices,    187. 

three    inseparable    incidents    to, 
170-171. 

thrives    on    diminution    of    sup 
ply,    202. 

Mortmains  and  entails,  prohibi 
tion  of,  244. 

Municipal  by-law,  a,  in  restraint 
of  trade  is  void,  179. 

NORTH  RIVER  SUGAR  REFINING 
COMPANY,  delivery  of  stock 
of,  211-215. 

PERPETUITY     inimical      to     public 

weal,    244-248. 
statute      of,      not      self-denying, 

247-248. 
Plaintiff,    facts   most   favorable   to, 

must    be    deemed    found    in 

his    favor     (citation),     154. 
on     motion     of,     Court     directs 

verdict    in    favor,    153. 
Points,    153-248. 
Pooling   arrangements,    205. 

SALE,   a,   implies   what,    205. 

no    true,    205-206. 
Standard   Oil    Company,    201,    203, 

204. 

Statement,    152. 

Sugar  Refining  Company  a  crimi 
nal  conspiracy  by  com 
mon  law,  182. 
in  the  State  of  New  York 
by  express  provision  of 
statute,  182. 

an  illegal  combination,   193,   194. 
combination    created    by,    injuri 
ous    to    trade.    182. 
contends     it     is     impossible     to 
monopolize    production,  193- 
194. 
deed  creates  a  monopoly  in  the 

strictest    sense,    209. 
does    not    constitute    a    combina 
tion    tending    to    monopoly, 
186. 


262 


INDEX 


finds  no  justification  in  right 
accorded  labor  to  organize, 
204. 

its  object  to  concentrate  pro 
duction  under  single  will, 
189-192. 

not  a  mere  partial  restraint  of 
trade,  208-209. 

what    constituted,    217-219. 
Supply   and    demand,    courts    have 
nothing  to  do  with  the  laws 
of.     171. 

the  natural  law  of  (citation), 
169. 


"TENDENCY,"    ambiguity    of,     199. 
Trust-combination,    first    effort    to 
break   up,    151. 


an    act,    an    infraction    of    posi 
tive    law,     162. 
is   an    abuse    of   the   corporate 

franchise    (citation),    164. 
is    the    usurpation    of    a    fran 
chise     (citation),     163. 
see    also    Forfeiture. 
"Unlawful"    as    applicable    to    cor 
porations    (citation),    164. 

Ultra  Vires,  acts  and  contracts, 
161  et  seq. 

VERDICT  of  jury  a  general  ver 
dict  for  the  people  (cita 
tions),  154. 

WANAMAKER'S  not  a  monopoly, 
202,  203. 


THIS   BOOK   IS  DUE   ON   THE   LAST  DATE 
STAMPED   BELOW 


RENEWED  BOOKS  ARE  SUBJECT  TO  IMMEDIATE 
RECALL 


JUH     6  1368 

'•)  1968 


LIBRARY,  UNIVERSITY  OF  CALIFORNIA,  DAVIS 

Book  Slip-35m-7,'62(D29684)458 


Call  Number: 


E660 
P97 


addresses 


\ryof 


E&&O 


262972 


